Kehoe v. Philadelphia , 199 Pa. 45 ( 1901 )

Opinion by

Mr. Justice Brown,

The appellant brought suit against the city of Philadelphia to recover damages for injuries resulting to his property at the corner of Almond and Huntingdon streets from the alleged negligence of the appellee in connection with its control and supervision of the former street. The appeal is from a judgment of nonsuit, and it is to be regretted that the court below gave no reason for entering it or for refusing to take it off.

Sometime before the injuries complained of were sustained, the grade of Almond street had been changed, and, for the injury done to the property of appellant by the change, damages were assessed and paid to him in the statutory proceeding instituted for their recovery. The. theory of the defense, as presented to us, is, that there can be no recovery in the present suit, because it has been brought for damages sustained, or likely to have been sustained, by the change of the grade of the street, for which compensation has already been made in the only proceeding that could have been instituted for them ; and this view, we assume, in the absence of any reason assigned for withdrawing the case from the jury, must have been adopted by the court below. For any injury which resulted, or was likely to result, to his property from the change in the grade of the street, the plaintiff, of course, cannot now recover; and, if his present suit be for injuries so sustained, the nonsuit cannot be disturbed; but though the appellee, for the purpose of its defense, contends that he has so sued it, the statement of his cause of action, sustained by proof, is otherwise. Upon it he has a right to ask for judgment, and the appellee cannot be heard in support of this judgment against him on a theory which overlooks it and ignores his proofs. In the statement of his claim it is true, he refers to the change in the grade of the street, but the ground of his complaint, as distinctly set forth is that, after the grade had been actually changed, the appellee in disregard of its duty, maintained the street in so negligent and improper a manner as to cause the injuries to his property. The proof is ample that, for many months after the grade had been changed, the street was improperly and negligently maintained by the city, having been full of holes, containing water, which the appellant contends percolated into his cellar and caused the special and serious injuries to his property, as set forth in his statement. It is most manifest that the case, as presented, should have gone to the jury, before whom the theory of the appellee might have availed as a matter of defense, if supported by proper proof. The judgment is reversed and a procedendo awarded.