Philadelphia Co. v. Central Traction Co. , 165 Pa. 456 ( 1895 )

Opinion by

Mb. Justice Mitchell,

The actions by Glass and Eckendorver against the plaintiff company of course charged and proved negligence against it, or there could have been no recovery in them. But it was the negligence of not performing the duty to the public of keeping its pipe lines in proper and safe condition. Whether there was an initial negligence of the present defendant out of which plaintiff’s default arose, might or might not have been shown, in the trial of those cases, and may or may not appear in the records, but was not material and could not affect the results of those actions, or the question in the present ease of the liability as between the plaintiff and defendant. The second and third assignments of error, and the argument upon them, are satisfactorily answered by the illustration given by the learned judge in his charge, of the common ease of a municipality being held liable to a party injured by an obstruction in the street, yet having an unquestionable right to recover from the person who put it there: Brookville v. Arthurs, 130 Pa. 501, 152 Pa. 334.

The fourth assignment of error cannot be sustained. The compromise and payment of the claims of Glass and Eckendorver before a decision of this court on the appeals did not make the plaintiff a volunteer. There was no obligation to take an appeal from the judgment on. the verdict, in the first place, or to prosecute it any further than seemed to be prudent and advantageous. The verdict was against plaintiff and the compromise reduced the amount for which plaintiff was prima facie liable, and for which it would have a claim against the defendant. The compromise therefore was apparently in the interest of defendant as much as of plaintiff, and it is agreed that the amounts paid were reasonable.

The cause of the accident is stated in the charge, and apparently conceded, to be the sinking of the pipe as a result of taking away the props or supports under it, and not tamping the earth when it was thrown back into the excavation. This was prima facie the duty of defendant company, part of their work. They dug the trench and should fill it up; they knew to what extent and at what points they had laid bare or disturbed plaintiff’s pipe, and it was their duty, unless in some way relieved of it, to replace the earth and leave th.e pipe in as good and safe condition as they found it. The learned judge charged to this effect, and added that he did not remember any evidence in the case that plaintiff had assumed that duty. This raises the only remaining question in the case, what was the extent of the agreement as to the performance or supervision of the work by the. plaintiff where it was likely to affect their pipe. The learned^ judge construed it not to include the duty of replacing the earth' in the excavation after the vault was finished, and unless he was wrong in this, the charge is not open to objection. The agreement was not in writing and appears mainly in the testimony of Wilcox, the plaintiff’s engineer. It is not desirable, nor would it serve any good purpose to go over this evidence in detail. The general effect of it as to the agreement is very fairly stated by appellants themselves in the argument in their paper-book, that the plaintiff company “should provide the skilled labor that would be necessary to provide for any changes in its lines made necessary by the excavation and constructive work of the traction company.” Taking this as the appellant’s own understanding of the contract, the work whose negligent performance caused the injury was not within it. No change was made necessary in the pipe from which the leak occurred. It was simply uncovered during the work, continued in its ordinary use all the time, and was covered up again without change when the work at that point was done. It was in this covering up again that the negligence occurred. Under no reasonable view of the contract could this be considered as part of the skilled labor made necessary by changes in the lines of pipe. Nor is there any evidence that either of the parties so regarded it at the time. The plaintiff’s pipe on the south side of Wylie avenue was undermined by the same excavation, and the pipe was raised and carried over the vault by the plaintiff’s skilled workmen in accordance with the agreement. The pipe on the north side of Wylie avenue was exposed at the same time as already stated, but no change was made in it, and the defendant’s workmen filled in under and around it the earth which they had taken out, and neither party gave any indication of regarding the situation of the pipe or the work to be done about it, as calling for the skilled labor which plaintiff had agreed to supply.

Judgment affirmed.