Weir v. Plymouth Borough
Weir v. Plymouth Borough
Opinion of the Court
None of the specifications of error is sustained. The declarations of Jacob Castner, the street commissioner, made while engaged in doing the work, were a part of the res gestee. It was not denied that he was acting as street commissioner, and within the scope of his authority. In any event, the testimony proved that he was so acting. He was engaged at the time the declarations were made in working on the borough streets, doing the very thing, it is alleged, that caused the injury. The learned court submitted to the jury the question, whether he was acting within the general scope of his employment as a street commissioner. The jury having found that fact against the borough, there is no more to be said upon this branch of the case.
Nor do we think it was error to reject the testimony of George R. Conner, offered by the defendant to show that the gutter made by Castner, the street commissioner, emptied on and was dug on private property of the Lehigh and Wilkes-Barre Co., and that permission to do this had been obtained by their agent. If the water thus thrown upon the property of this company, necessarily found its way to the property of the plaintiffs and thereby caused an injury thereto, the borough would be responsible.
The remaining specifications refer to the charge of the court. In this we find no error.
Judgment affirmed.
Reference
- Cited By
- 22 cases
- Status
- Published
- Syllabus
- Municipal corporation — Changing course of surface water — Liability. A municipal corporation is liable for changing, by the digging of ditches for that purpose, the natural course of the water collecting on its streets, and thereby throwing it on to the land of a private owner. Evidence — lies gestae — Declarations of street commissioner. The declarations of a street commissioner, while acting within the scope of his authority in the doing of such work, are evidence as part of the res gestas. Consent of intermediate owner. That the owner of the land upon which the water is directly thrown consents thereto, does not constitute a defence, if the water necessarily finds its way to the property of plaintiff and causes an injury thereto. Measure of damages. The measure of damages in such a ease is the loss in value of the property consequent upon the injury to trees or other property destroyed by the water, and the deprivation of the use of the property during the time it was flooded in consequence of the borough’s unauthorized act; and, if the flooding was continued so that it became necessary to fill in the ground to keep the water out, the cost of filling could be taken into consideration by the jury. Sole cause of injury. In such a case, it would be error to instruct the jury that in the absence of clear proof that water running from the street upon plaintiffs’ lot was the sole cause of the injury, plaintiffs are not entitled to recover.