Haus v. Bor. of Bethlehem , 134 Pa. 12 ( 1890 )

Opinion,

Mr. Justice Stebbett:

It was not denied that the plaintiff below was considerably damaged by water which accumulated on her premises, in consequence of the obstruction of the drain or sewer through which it should have been discharged, but it was contended on behalf of the borough authorities that the injury complained of was not the result of their negligence. Under the evidence before the jury, it became an issue of fact whether the property of plaintiff below was injured in consequence of the borough’s negligence. In affirming the second, fifth, and sixth points of defendant below, the learned judge of the Common Pleas instructed the jury, in substance, that the plaintiff could not recover unless they were satisfied from the weight of the evidence that the injury to her property was caused by the negligence of the defendant corporation; that the jury could not guess at the amount of damages suffered by the plaintiff, but must ascertain the same to their own satisfaction, from the evidence before them; and that in no event could she recover more than such actual damages as she proved, by competent evidence, that she sustained by reason of the defendant’s negligence.

Assuming, as we must, that the jury obeyed the above and similar instructions, their verdict in favor of the plaintiff below necessarily determined all the controlling questions of fact in her favor, and against the defendant. Moreover, the evidence was such as necessarily carried the case to the jury, and war-' ranted them in finding as they did. It follows that the learned judge was right in refusing to charge as complained of in the first specification, viz., that, * under all the evidence, the verdict must be for the defendant.”

The defendant’s third and fourth points, recited in the second and fifth specifications, were also rightly refused. The third point could not have been affirmed without ignoring evidence tending to show that the private culvert therein referred to was constructed with the knowledge and assent of the borough authorities, and that they negligently and carelessly permitted it to be improperly constructed, and allowed it to remain in that condition with knowledge that damage was likely to result therefrom to tbe plaintiff and other adjacent property owners. For similar reasons the fourth point could not have been affirmed as presented.

The subjects of complaint in the third, fourth, and sixth specifications are portions of the general charge recited therein, respectively. They are not sustained. The charge, as a whole, was a fair and impartial presentation of the case to the jury, with such instructions ,as were clearly suggested by the evidence.

There was no error in admitting the offer of evidence referred to in the seventh and last specification. We find nothing in the record that warrants a reversal of the judgment. 1

Judgment affirmed.

On May 5, 1890, a motion for a re-argument was refused.