Helbling v. Allegheny Cemetery Co. , 201 Pa. 171 ( 1902 )

Opinion by

Me. Justice Fell,

The plaintiff’s house was injured by water which during rain storms accumulated at the opening of a city sewer and flooded the street. The opening of the sewer was on the land of the Allegheny Cemetery Company, from which it received the surface drainage, conducted to it by natural and artificial drains. It was surrounded by a circular iron grating or crib six feet high to prevent it from becoming clogged with rubbish. The negligence alleged was that the cemetery company allowed large quantities of brush, weeds and cut grass to lie along the water courses and near the opening of the sewer, and that these were carried by the rains to the crib and so clogged it that the water did not have a free passage to the sewer. The main ground of the defense was that the rainfalls were so extraordinary that their consequences could not be foreseen, and that the injury was attributable solely to an act of God for which no one was liable.

All the assignments of error except one, relate to the instruction of the court on this branch of the defense. It is argued that the instruction was inadequate and misleading, in that it left the jury to find that any concurring negligence on the part of the company however trifling and fanciful, and although it did not produce the injury, and the absence of it would not have prevented it, made the company liable. Some expression in the charge standing alone may be open to the objection urged, - but the charge considered as a whole, fully and properly states the law applicable to the case.

The injury should be attributed wholly to the act of God, if the extraordinary rainfall would have caused it not withstanding the negligence of the cemetery company. The mere existence of negligence which is not a producing cause of the injury creates no liability. Where an injury is occasioned by flood or storm, the concurrence of negligence with the act of God in producing the injury is necessary to fix liability. If - the act is so overwhelming as of its own force to produce the injury independently of the negligence shown, the defendant cannot be held responsible; Livezey v. Philadelphia, 64 Pa. 106 ; Balt. & Ohio R. R. Co. v. Sulphur Spring Independent School Dist., 96 Pa. 65.

The jury was instructed that if the sole -cause of the injury was an extraordinary flood, the cemetery company was not liable, and that it could be held liable only in case some negligent act on its part, the natural consequences of which should have been foreseen, concurred with the flood in producing the loss. This instruction was distinct and emphatic and repeated at the end of the charge and it could not have been misunderstood.

As the injury to the plaintiff’s house was not of a permanent character, the measure of damages was the cost of restoring the property to its former condition, together with compensation for the loss of its use. The rule applicable for the ascertainment of damages where land has been taken under right of eminent domain was not the proper measure: Robb v. Carnegie Bros. & Co., 145 Pa. 324; McGettigan v. Potts, 149 Pa. 155; Esbleman v. Martic Twp., 152 Pa. 68. As, however, the jury was instructed to apply this rule only in case that the difference in market value before and after.the injury was found to be less than the cost of restoring the property, no harm was done the defendant.

The judgment is affirmed.