Brown v. White , 202 Pa. 297 ( 1902 )

Opinion by

Mr. Justice Mestrezat,

The defendant and Mrs. Effie O. Gilbert own adjoining lots on the east side of North Main street in the borough of Chambersburg. On these lots are erected two brick dwelling houses, between which is an archway from the property line to the rear of the buildings, about three feet wide and extending in height to the second story of the buildings. The archway is on the land of Mrs. Gilbert and is formed by the second story of the defendant’s house projecting over the way to Mrs. Gilbert’s building. The defendant had the right to use the archway. In April, 1899, he constructed a one and one quarter inch drain pipe from a sink in the second story of his house to the archway by which the contents of the sink could be carried to and discharged upon the surface of the archway through which it flowed to the pavement, and thence in an open gutter over the pavement to the street. The water from the roof of the adjoining property was carried to the archway in a four inch pipe opening therein a short distance in the rear of the place where the waste water from the sink was discharged. The defendant did not live in his house but leased it to various tenants. Four rooms on the second floor, one extending over the archway, were rented and occupied jointly by two tenants engaged in the millinery business. The sink referred to was in one of these rooms and used by the occupants in disposing of the waste water “ that would come from ordinary housekeeping.”

The plaintiff is a woman of seventy-one years of age and at the time of the accident was, and for three years prior thereto, had been engaged as a chambermaid at the Montgomery hotel on North Main street, Chambersburg, a short distance south of, and on the same side of the street as, the defendant’s property. She lived outside the borough and spent her nights at home. On leaving the hotel in the evening for her home she immediately crossed Main street and then entered an alley leading off the street. In returning to her work in the morning she usually came on King street to Main street and along the opposite side of that street from defendant’s property to the hotel. Before daylight and in the early morning of December 80,1899, the plaintiff in going to her work came up King street and, contrary to her usual custom, crossed to the east or hotel side of North Main street. She then proceeded along the footwalk on that side of the street until she came in front of the archway where, stepping on some ice, she fell and was seriously and permanently injured. There was no ice on the pavements between her home and the archway. She says it had been a good while prior to the time of the accident since she had passed over the pavement in front of the archway. The testimony of the plaintiff showed that on the morning of the accident there was a continuous ridge of ice extending from the mouth of the archway across the pavement to the curb. In the center of the ridge it was from three to five inches thick and sloped to the sides. It is claimed by the plaintiff and her evidence tended to show that this accumulation of ice was produced by the water which passed through the defendant’s drain pipe and thence through the archway to the pavement where it froze. This action was brought by the plaintiff to recover damages for the injuries she sustained by the alleged negligence of the defendant in causing the pavement to be obstructed by ice. She avers that the defendant “ did so negligently and carelessly construct, keep and maintain the buildings on his said lot of ground erected and the pipes, drains and gutters in, upon and about the same in such manner that large quantities of waste water, drainage and water from rain and melting snow and ice were discharged over and upon the said pavement and became frozen thereon so that it obstructed the same and rendered it dangerous and unsafe to persons passing upon and using the said pavement.”

The trial in the court below resulted in a verdict and judgment for the plaintiff and the defendant has appealed. The first, fifth, sixth, seventh and eighth assignments allege error in the court in rejecting evidence of the defendant offered for the purpose of showing the condition of the premises before and after the accident. Portions of some of these offers might have been admissible, but contained in an offer with other incompetent matter were properly excluded. The learned trial judge was right in excluding the offers to which these assignments relate. The liability of the defendant arises from the condition of the premises at the time of the accident. This could not be shown by their condition prior or subsequent to that time. It may be as the defendant offered to show, that the surface water flowing through the archway from the rear of the building produced ice on the pavement the winter before the accident, and that this condition of the pavement existed before the drain pipe had been constructed and after it had been removed. But conceding these allegations to be true they do not meet nor tend to disprove the averments of the plaintiff supported by her testimony that the ice on which she fell or a material part thereof was formed by the water which came from the drain pipe leading to the archway from the kitchen on the second floor of the defendant’s building. The evidence of the plaintiff shows that a quantity of water had been discharged through the drain pipe the evening before the accident by the occupants of the defendant’s premises, and that that water had produced the accumulation of ice on which the plaintiff fell. In addition to this, there was testimony that on the occasion of the accident there was no ice back of the drain pipe, but that it extended from the mouth of the drain pipe in the archway to the pavement. This was the issue which the defendant was called upon to meet, and evidence offered by him that ice on the pavement a year previous or at a time subsequent had accumulated from other causes would not negative the proposition of the plaintiff’s averment. On former and subsequent occasions when the drain pipe was not in use ice could have formed on the pavement at this point from water coming from the hydrants and the roofs of the houses or from surface water collected in the rear of the buildings and carried to the pavement through the archway as claimed in the defendant’s offers, but that fact of itself would not show nor tend to show that water from another source might not have been discharged on the pavement and formed the ice which caused the plaintiff’s injuries. In the absence of evidence that water did flow to the pavement from other sources than the drain pipe, it cannot be presumed that water from such source did produce the ice on the occasion of the accident. After affirmative evidence of the fact on the part of the plaintiff, it was incumbent upon the defendant to show that the plaintiff was not injured by ice that had accumulated from water discharged through the drain pipe, and his offers, if admitted, would not have aided the jury in arriving at such a conclusion.

The second, third and fourth assignments complain of the court’s refusal to admit testimony to show that in the borough of Chambersburg it is customary to drain water from lots, roofs and waste pipes for domestic use in the houses of the borough, over and through uncovered drains across pavements to the gutters in the street, in the same manner as was done in the case on trial. The learned trial judge very properly sustained the objection to the offers and excluded the testimony. In support of these offers the learned counsel for the defendant cite King v. Thompson, 87 Pa. 369. There it was held that an opening in the sidewalk such as is usual in a city for the purpose of light and ventilation to a dwelling, is not per se a nuisance. The second point for charge, the refusal of which was held to be error, requested the court to instruct the jury that the defendant was not guilty of negligence or nuisance in maintaining an opening in the pavement if such opening was not only usual and customary in Allegheny city for lighting and ventilating cellars but also was reasonably necessary for those purposes. In the opinion it is said that if it was customary time out of mind for property holders to have such opening and “if reasonably necessary for light and ventilation, the property owner is not chargeable with negligence for placing and keeping it there.” In the case at bar, the offers did not propose to show nor would it even be pretended that the ice bank in question was necessary for any legitimate or lawful purpose; nor was it suggested in the offer that running water from the lots, roofs and waste pipes over uncovered drains across pavements was a necessary, or the only practicable, Avay of disposing of such water. There is no averment by defendant that any necessity existed for using the pavements of the borough of Chambersburg for carrying to the gutters along the streets surface or Avaste water or water that might have floAved from the roofs of houses. It is therefore apparent that had the testimony been admitted it would have disclosed the single fact that the custom of the people of the borough was to conduct the water from the premises on the pavement and permit it to congeal there which was negligence, resulting in a nuisance, dangerous and unsafe to all who had occasion to use the streets. Regardless therefore of any necessity for thus disposing of the surface water by the property owners, the ice permitted to form in front of the' archway and on which the plaintiff fell avrs, as shown by plaintiff’s testimony, a public nuisance and in the language of the court in McNerney v. Reading City, 350 Pa. 614, neither the lapse of time nor the existence of like nuisances elsewhere, with the consent of the municipality, will legalize it. Obstructions on the footwalks of the streets of a municipality, whether created by the accumulation of ice or otherwise, except such as are temporarily permitted for a lawful purpose, are a nuisance, and the party responsible therefor is liable to the individual injured by, his illegal act. The public have a right to the use of the street in the condition in which the municipality has left it, and no person whether an adjoining owner or not is justified in placing or permitting an obstruction thereon which renders it dangerous or insecure. The custom of the citizens or the acquiescence of the municipality will not excuse such conduct.

What has just been said applies to and disposes of the thirteenth assignment of error.

The jury was properly instructed on the question of the plaintiff’s contributory negligence, raised by the tenth, eleventh and sixteenth assignments of error. Whether she exercised due care in approaching the place of the accident was, under the facts disclosed by the testimony, for the jury.

In the twelfth and fourteenth assignments the defendant denies his liability in this action because his house was, at the time of the accident, occupied by tenants who used the sink and drain pipe which carried the waste water to the archway. In support of his position the defendant contends that it was the duty of the tenant to use the premises so as to injure no one, and to remove the ice and snow from the pavement. We are not here concerned with the duty and liability of the tenant to the plaintiff. It may be that the tenants who put the waste water in the drain pipe were liable to the plaintiff, but that fact does not relieve the defendant in this action. After purchasing the property, he constructed the sink and drain pipe for the purpose of carrying the waste water from the rooms in the occupancy of his tenants to the archway, with a knowledge that it would flow thence on the pavement. The condition of the building was therefore attributable to the act of the defendant and not to that of the tenant, and its use by the latter was in conformity with the defendant’s intention when he leased the premises. “We do not doubt,” said Gordon, J., in Knauss v. Brua, 107 Pa. 88, “ but that, in the absence of an agreement to repair, the landlord is not liable to a third party for a nuisance resulting from dilapidation in the leasehold premises whilst in the possession of a tenant. To make the lessor so liable the defect must be one that arises necessarily from a continuance of the use of the property as it was when the tenant took possession of it. But the converse of this proposition is also true; if the premises are so constructed, or in such a condition, that the continuance of their use by the tenant must result in a nuisance to a third person, and a nuisance does so result, the landlord is liable.” To the same effect are Fow v. Roberts, 108 Pa. 489, Wunder v. McLean, 134 Pa. 334, and Reading City v. Reiner, 167 Pa. 41.

The ninth and fifteenth assignments allege error by the court in holding that the plaintiff was entitled to recover damages for expenses incurred for medical services rendered by her physicians. There was no evidence showing the amount of money expended for these services, nor what the services were reasonably worth. The learned trial judge, however, held that in estimating the damages the jury should allow for the direct expenses incurred by the plaintiff by reason of the injury, and instructed the jury that “ the mere fact that it does not appear from the evidence that she has not paid her medical aid will not prevent her from recovering in this case for what would reasonably compensate her physicians.” It is quite true as the learned judge suggests, that the fact that the plaintiff had not paid her physician would not prevent her recovering the value of his services. But that is not the question. In the absence of any evidence of the value of such services or of what they are reasonably worth, was the plaintiff entitled to recover anything on account thereof ? It seems to us rather singular that when the physicians who rendered these services were on the witness stand and detailed the character and extent of their services, they were not interrogated as to their value. It is contended by the learned counsel for the plaintiff that in the light of their testimony “ the average jury from their own experience could estimate with considerable accuracy what would be reasonable compensation.” We cannot assent to this proposition. On the contrary the average juryman is not a professional man, and is not presumed to know the value of such services. What would have been reasonable compensation for the medical services rendered the plaintiff might have been shown by the physicians who attended her or by others who were acquainted with the value of similar services in the community in which they were rendered. It was incumbent on the plaintiff before she could recover from the defendant compensation for medical aid to furnish the jury evidence from which they could determine what had been paid for such services or such amounts as the services were reasonably worth. Failing in this, there was no basis on which the jury could estimate or intelligently determine this element of the plaintiff’s damages. A verdict should be supported by legal evidence, otherwise it is the result of the whim, caprice or guess of the jury. This is not permissible under our jury system.

It follows that the ninth and fifteenth assignments of error must be sustained. The judgment is reversed and a venire facias de novo is awarded.