Pfeffer v. Johnstown , 287 Pa. 370 ( 1926 )

Plaintiff recovered against the city a verdict and judgment for a change of grade of the street in front of his property, and defendant appeals.

Three points are covered by the assignments of error: (1) that defendant was entitled to binding instructions in his favor; (2) that a new trial should have been granted; and (3) that the court below erred in not charging the jury, as requested by defendant, that, if the grade was established at a given time, the statute of limitations barred the claim. As to (3), it may be said that the statute does not begin to run when a new grade is established, but when the change of grade of the street is actually made: Jones v. Bangor Borough,144 Pa. 638; Devlin v. Phila., 206 Pa. 518. The point which was refused in no way referred to this. As to (2), in so far as it relates to the alleged excessiveness of the verdict, it is only necessary to say that there was evidence which would have sustained a recovery of more than twice the amount of the judgment; under such circumstances, save in extreme cases, we do not review the exercise of its discretion by the court below: Clarkson v. Crawford, 285 Pa. 299, 303. In so far as point (2) rests on the allegation that the evidence was insufficient to sustain any verdict, it is but repeating the objection specified in point (1). It follows that our single question is: Was defendant entitled to binding instructions in its favor? In considering this, "all the evidence and inferences therefrom favorable to the party against whom it is claimed these instructions should have been given, must be taken as true, and all unfavorable to him, if depending solely on testimony, must be rejected": Fluke v. Lang, 283 Pa. 54.

Plaintiff's evidence shows that his property faces the street at its lowest point; that when his house was built, it conformed to the then existing grade; that the city later gave to a passenger railway company occupying the street, the right to construct thereon, opposite plaintiff's property, a switch and turn out, in doing which it raised the grade, between its tracks, about eighteen inches, whereupon the city raised the rest of the street so as to conform to the railway's new grade, and notified plaintiff to lay the curb and pave the sidewalk in front of his property; and that the effect of the change of grade was to leave his property below the level of the street, so that the rain water runs down the street, from each direction, and into the cellar of his house, thereby greatly reducing the value of the property.

The city does not allege that plaintiff would not be entitled to recover if the facts were as stated, but denies that any such facts were properly proved. It says, in the first place, that the extent of the change of grade, if there was any, was not testified to by surveyors or engineers, who alone could accurately determine it, but only by witnesses who had seen the work done, and estimated the extent of the change by what they saw; in one instance, by lying down and aligning the difference with the eye only. In Downey Bros. v. Penna. R. R. Co., 219 Pa. 32, we held that this kind of evidence was admissible, although no actual measurement was made; and, in Corbin v. Haws Refractories Co., 277 Pa. 126, 131, that, though it was "contradicted by others who claimed to have made more accurate measurements, the dispute was [nevertheless] one for the jury." This conclusion is especially applicable to the present case, since, in order to raise the point here, objection should have been made to plaintiff's evidence when it was offered, or a motion later made to strike it out (McCullough v. Ry. Mail Assn., 225 Pa. 118), neither of which was done; and because also the court below carefully instructed the jury regarding the weight to be given to the differing proofs of the two parties, apparently to the satisfaction of appellant, since its counsel remained silent when, at the end of the charge, the court asked "is there anything else that counsel on either side would have us add or correct?" The case is not one which is controlled by "incontrovertible physical facts," as appellant contends, and hence Lessig v. Reading Transit Light Co., 270 Pa. 299, and similar cases, do not apply. The records in the city engineer's office are, of course, incontrovertible; but whether the actual grade of the street conformed thereto, at any given time, depended on the testimony of witnesses, which had to be submitted to the jury: Fuher v. Westmoreland Coal Co., 272 Pa. 14.

The city further alleges that even if there was sufficient evidence as to the fact and extent of the change, there was none that the city had formally authorized the making of it. This is true; but the point was not made either in the appeal from the award of the jury of view, or at the trial in the court below, although the petition for the appointment of the jury, and the statement of claim, each specifically averred that the change of grade had been made under the express authority of the city. It cannot be urged for the first time on appeal to this court: Atlas Portland Cement Co. v. American Brick Clay Co., 280 Pa. 449; Union County v. Northumberland County, 281 Pa. 62.

The evidence, as it appears in cold type, seems to clearly preponderate in favor of defendant, but this alone is not sufficient to compel us to reverse. As the case was presented, it could not have been taken from the jury, and, hence, in the absence of a clear abuse of discretion, which does not appear, the responsibility for granting or refusing a new trial, because of the alleged weight of the evidence, rested on the court below and not on this court: Maloy v. Rosenbaum Co.,260 Pa. 466.

The judgment of the court below is affirmed.