Opinion
April 23, 1962.
May 21, 1962.
Negligence — Obstructing creek — Inadequacy of culverts to carry off rising water — Heavy rainfall — Legal cause — Proximate cause — Evidence — Expert — Opinion — Prudent man.
In this action of trespass to recover flooding damages to plaintiff's property along a stream and below the place where defendant had built a temporary road across the stream with three culverts through the base to permit the flow of the stream water, in which there was evidence that this was a mountain stream known to rise and fall rapidly as the result of heavy rainfall and subject to flash floods at least three or four times a year, during which times the stream would rise substantially from its normal level; and this condition was called to the attention of the defendant at the time of the construction and defendant was warned that the pipes installed would not carry the water during one of the stream's flash floods; and it further appeared that on August 18, 1955 a heavy rain accompanying hurricane Diane fell in this area and the temporary roadway constructed across the stream caused a considerable volume of water to back up, then break out and the obstruction was entirely washed away, and there was circumstantial evidence that the real damage to plaintiff's property occurred several hours after the stream would normally have crested and resulted from the breaking out and washing away of the roadway, it was Held, in the circumstances, that (1) the evidence was sufficient to sustain the jury's finding of defendant's negligence, (2) the flood condition was not a superseding cause, (3) an experienced hydraulic engineer was properly permitted to give opinion testimony based upon testimony of witnesses he had heard testify and was properly permitted to express an opinion that the construction which obstructed the stream "wasn't something which was engineeringly sound or that a prudent man would construct"; (4) a witness was properly permitted to testify as to an estimate as to the number and value of fish lost by the plaintiff as a result of the flood damage; and (5) a witness was properly permitted to testify concerning the depreciation in value of the real estate even though he had not bought or sold any land in the sparsely settled area involved, it appearing that he was an experienced real estate appraiser and was familiar with property values in the township; and (6) the court below had properly dismissed defendant's motions for judgment non obstante veredicto and for a new trial and entered judgment on the verdict.
Mr. Chief Justice BELL dissented.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.
Appeal, No. 192, Jan. T., 1962, from judgment of Court of Common Pleas of Carbon County, Oct. T., 1956, No. 1, in case of Hayes Creek Country Club, Inc. v. Central Penn Quarry Stripping and Construction Company. Judgment affirmed.
Trespass for property damage. Before CAMPBELL, P. J., specially presiding.
Verdict entered for plaintiff, defendant's motion for new trial and for judgment non obstante veredicto refused and judgment entered on the verdict. Defendant appealed.
John P. Thomas, with him Boyd H. Walker, and Walker Walker, for appellant.
Roger N. Nanovic, with him Albert F. Maier, for appellee.
Judgment affirmed on opinion of President Judge CAMPBELL, specially presiding.
Mr. Chief Justice BELL would reverse and enter judgment n.o.v. for defendant.