Dennison v. Somerset & Cambria Railroad , 21 Pa. Super. 248 ( 1902 )

Opinion by

Beaver, J.,

The drainage of Main street in the borough of Somerset was wont to flow down the gutters thereof to Cox’s creek. In building its railroad along or upon Pleasant street in the said borough, the defendant crossed Main street at a grade higher than the street, and thereby interrupted and interfered with the drainage down the said street to the creek. To provide for the drainage above the railroad, a box drain was laid under the road of the defendant and, by an ’ arrangement with the owner of the land immediately adjoining the railroad, the drainage passing through the said drain was deposited upon his land. The defendant owned the land adjoining that upon which the drainage was deposited. Subsequently to the building of the railroad and the construction of the said drain, sundry persons living upon Main street above the railroad made connections from their bathrooms with the gutters on the street, through which the offal therefrom passed into the drains under the railroad aforesaid and onto the land of Brant adjoining the property of the plaintiff.

The plaintiff brought her action of trespass against the defendant claiming that “ 1. The water from the street produced from the rains and the wash and waste water from the residences along the streets were carried by means of this drain onto her land, made it marshy and unfit for meadow or for tillage. 2. The filth which accumulated on the streets and alleys, such as horse manure, decayed vegetable matter and dead cats and rats and, in recent years, the contents of cesspools, etc., were swept by the wash of waters through this drain over upon her lands or in such close proximity thereto that the foul and offensive odors arising therefrom polluted the water and the air around her dwelling, so as to make living there almost impossible.” The plaintiff’s statement is not printed by the appellant but this claim is taken from the eounterstatement in book of the appellee.

It is not denied by the defendant that it constructed and maintains this drain and that it acquired the right from Brant to deposit what passed through it upon his land. It claims, however, that it is not liable in this action for several reasons :

1. “ Because of the liability of Brant and wife who, having granted the right to the defendant company to construct the ditch over their land, thereby imposed an easement or servitude upon their land and the duty devolved upon them to take care of any deposit placed upon the land, under the terms of the grant.” To this we cannot assent. In Weir et al. v. Plymouth Borough, 148 Pa. 566, it was held that “ a municipal corporation is liable for changing, by the digging of ditches for that purpose, the natural course of the water collecting on its streets and thereby throwing it on the land of a private owner, and that the owner of the land, upon which the water is directly thrown, consents thereto does not constitute a defense, if the water necessarily finds its way to the property of the plaintiff and causes injury thereto.” The principle is the same here. If the plaintiff suffered the injury, by reason of the deposit of the drainage upon Brant’s property, even if Brant were liable, the defendant would be also liable.

2. “ Because of the liability of the borough.” The exact terms under which the railroad undertook to carry the drainage from the upper part of Main street under its railroad do not appear. The defendant claims, however, that “ the borough authorities having permitted the water to be carried from Main street through this ditch and having connected with it, so as to carry the water from the south side of Main street thereto, made it a borough drain and assumed control of and responsibility for it and this is shown by their negotiations with the husband of the plaintiff to construct a ditch over the plaintiff’s land and put in pipe to carry the water and other matter to the creek.” Admitting the liability of the borough, the defendant is not relieved of liability for any injury done to the plaintiff. The building of its railroad interfered with the natural and usual drainage of Main street. In order to provide an outlet for that part of the street above its road, this ditch was constructed and for its construction and maintenance and whatever injury was caused thereby it is liable. It is possible that the borough is also liable but this does not relieve the defendant. It voluntarily constructed and voluntarily maintains, for its own benefit and convenience, the drain through which the damage of which the plaintiff complains was done. The principle of North Pennsylvania Railroad Co. v. Mahoney, 57 Pa. 187, and Faust v. P. & R. Ry. Co., 191 Pa. 420, is not precisely applicable. It is rather the converse of the proposition maintained in those cases which governs here, but the principle of joint negligence and, consequently, of joint tort feasors is therein distinctly recognized, and that is sufficient to fix the liability o£ the defendant.

8. “ The liability of the citizens who caused the alleged injury.” It follows, from what has been said, that the plaintiff was not bound to seek a remote cause nor to pursue those who were remotely responsible for at least a portion of the damage which she suffered. The defendant cannot hide behind any number of wrongdoers and cannot evade its liability by charging others with wrongdoing, for which they might or might not be legally liable. It might be difficult to measure the amount of damage which the alleged wrongdoers caused or to which they contributed respectively. In McCarthy et al. v. DeArmit, 1 Penny. 297, it was held that “ in trespass all the defendants are alike guilty and each is liable for the damages sustained, without regard to the different degrees of guilt and that, when exemplary damages are claimed, the jury should be instructed to assess them according to the acts of the least guilty of the defendants.” But where compensatory damages are claimed, the rule is different and was stated in Huddleston v. Borough of West Bellevue et al., 111 Pa. 110: “If the injury be their joint act, the plaintiff is entitled in a suit against both to recover the full amount of loss she has sustained. For a tort committed jointly the law will not apportion the guilt or responsibility of the tort feasors but holds them all for what the most culpable ought to pay.” Whether the wrong complained of by the defendant was a joint tort, for which more than the defendant is responsible, is immaterial in this issue. The suit is against one and, under the cases already cited, the plaintiff had the undoubted right to maintain it.

4. The size of the drain and the purpose for which it was erected have little to do with this case. The drain was large enough to permit the damage complained of and, whether intended or not, it was done and generally, in a civil action, results rather than intentions govern.

We have followed the course of the appellant’s argument instead of considering the specifications of error separately. Viewing the whole case, however, there is nothing in the answers to points or the charge of the court which warrants our interference.

Judgment affirmed.