McHale v. Borough

Opinion by Orlady, J., The plaintiff brought this action of trespass against the borough of Throop and the Dickson City Water Company to re [397] cover damages which he alleged had been caused by their negligence in not repairing a broken fire hydrant and in diverting water therefrom so as to flow upon his property. On April 16, 1894, the borough of Throop was created by a decree of the court of quarter sessions of Lackawanna county, out of territory which until that time had been embraced within the borough of Dickson city. Prior to the formation of the new borough the borough of Dickson city had entered into a contract with the Dickson City Water Company, wherein it was provided, among other things, that the water company was to connect with its mains ten water hydrants for fire purposes at points and locations to be designated by the borough, and to be purchased, placed in position and kept in repair by and at the expense of the borough. The water company was to supply water for use in the hydrants at a stipulated annual rate. One of these hydrants was located in front of the plaintiff’s property in the new borough. In October, 1896, a wagon was driven against this hydrant so that it was broken at or near its connection with the water main, from which defect the water flowed on to the plaintiff’s property, thereby damaging it to the extent of $200, as determined by the verdict. On the trial of the case in the court below the jury was directed to return a verdict in favor of the water company, of which action no complaint is made. The plaintiff adduced proof to show that he gave notice of the leaking hydrant to the president of the borough council, and that repairs and changes were made at and about the broken hydrant by employees of the borough and under the direction of its officers, so as to divert the water upon his property, which changes were the direct cause of his damage. The defendant contended that even if the borough had erected and controlled the fire hydrant, its authority over it was purely discretionary, and that its duty to erect and repair was purely governmental, consequently it was not answerable for negligence in the matter. All that is urged by the defendant as to the duty of the borough to provide for a fire service and its liability for acts performed within its discretionary judgment may be conceded (McDade v. Chester City, 117 Pa. 414), but the responsibility of the borough to this plaintiff is founded upon very different principles. It matters not whether the borough erected the hydrant or whether it was [398] on the street when the borough was incorporated; it was there on a public highway and subject to its authority. The evidence clearly shows that whether the president of council exceeded his authority, or acted without any, in making the ditch to carry away the escaping water from the broken hydrant, the service rendered under his direction was approved by the council, and was paid for out of the public funds. The hydrant of itself did not cause the plaintiff any injury; the grievance of which he complained was the water that had been diverted on to his lands by the act of the borough. Did the borough have actual knowledge of the dangerous condition of the hydrant? Was it, under the circumstances, bound by constructive notice, and what was the effect of the changes and repairs made under the direction of the president of the council ? These material questions were rightly submitted to the jury. The borough was not responsible for the damage that Avas caused by the breaking of the hydrant, but after riotice, or its equivalent, of the facts, the borough was in duty bound to regard it as a source of danger, and was responsible for the damages which directly resulted therefrom: City of Scranton v. Catterson, 94 Pa. 202; Decker v. Scranton, 151 Pa. 241; Weir v. Plymouth Borough, 148 Pa. 566; Bohan v. Avoca Borough, 154 Pa. 404; Blizzard v. Danville Borough, 175 Pa. 479; Owens v. City of Lancaster, 182 Pa. 257. The seventeen assignments of error are all covered by the first and ninth, viz : “ Under all the evidence the verdict must be for the defendant, the borough of Throop.” “ There is no sufficient evidence of authority from the borough of Throop to any one to dig ditches upon or adjacent to the property of the plaintiff,” which were refused and the whole question was submitted to the jury under properly guarded instructions. The assignments of error are overruled and the judgment is affirmed.