Wick v. Butler Borough

Opinion by Rice, P. J., The instructions to the jury assigned for error were given on the trial of an issue framed on the plaintiff’s appeal from the report of viewers appointed to assess damages he claimed he had sustained by the grading of Walker avenue. The proceedings originated in an ordinance adopted pursuant to a petition of two-thirds of the property owners, praying the borough “to grade, pave with vitrified brick or other suitable material and curb with stone curbing the said street, under the provisions of the act of assembly approved April 23, 1889, P. L. 44, and assess.the cost and expense thereof as provided by said act.” The petition contained this clause: “And we waive any claim for damages done to our several properties by reason of said improvement.” Although the plaintiff did not sign the petition with his own hand, it was shown, on the trial, to the satisfaction of the jury, that his name was signed by his father, by his authority, and no question is now raised upon that point. The street was not paved from property line to property line, but spaces of about eight feet from each curb to the property line were left for footwalks. The contention of the plaintiff is that the borough went beyond the curb and changed the grade of the footwalk, which was at natural grade, by cutting down the footwalk up to the wall of his building, and that the damages resulting from that change of grade of the footwalk were not covered by the release. On the other hand, the borough contended, and adduced considerable evidence to show, that the part of the street set apart for footwalk in front of plaintiff’s property had not been “graded out;” that the excavation made in that part of the street did not exceed two feet from the'face of the curb, at the utmost, and was only such as was necessary to properly set the curb. The learned trial judge sub [583] mitted this question of fact to the jury under an adequate, impartial, and lucid charge, in which, as well as by his affirmation of the plaintiff’s first two points, the jury were instructed that, if there had been such change of grade of the part of the street left for footwalks as the plaintiff claimed had been made, he was entitled to recover any damages, over and above benefits,' he had sustained by reason thereof, notwithstanding the release of damages embraced in the petition. This was in exact accord with the ruling in McMarlin v. Butler Borough, 41 Pa. Superior Ct. 20. The reasons why the release of damages would not bar the plaintiff, if the facts were as claimed by him, were stated in that case, and need not be restated. But the applicability of that decision to the case under consideration depended on a finding that the grade of the sidewalk had been changed, and the jury refused, and were well warranted by the evidence in refusing, to make it. Their verdict, interpreted in the light of the charge and the answers to the points, means that no excavation or disturbance of the street outside the curb was made, excepting such as was necessary to set the curb properly. The setting of the curb ivas part of the improvement for which the plaintiff had petitioned, and any damages necessarily incidental to the making of the improvement were plainly released. The release is susceptible of no other interpretation. It follows that the instructions assigned for error were correct in point of law, and were such as were required in order to enable the jury to apply the law to the facts as they should find them. In thus submitting the case to the jury the learned court did not contravene or depart one iota from anything that was decided, or said, or even intimated, in McMarlin v. Butler Borough, 41 Pa. Superior Ct. 20. Little need be said with regard to the portion of' the' charge embraced in the third assignment. It cannot be contended that it was erroneous in law. The most that can be urged against it is that it was unnecessary and that, in view of the admission made at the outset of the [584] trial, that whatever work was done was done by the borough, it was misleading. We agree that it was unnecessary, for, ás we read the testimony, no question was raised as to the authority of the contractor. But, having regard to the course of the trial, the charge, and the answers to the points, taken as a connected whole, we cannot agree that it could have misled the jury into the supposition that they might find in favor of the borough, upon the ground that the contractor had exceeded his authority. If the learned counsel had thought otherwise, and had deemed the remark of sufficient importance to require explanation, doubtless he would have reminded the court of the omission to call the jury’s attention to the admission above referred to, when, at the conclusion of his charge, the learned judge expressly requested counsel to mention any omission he had made. In view of all of the considerations to which we have alluded, we conclude that this assignment does not embrace reversible error. The assignments of error are overruled, and the judgment is affirmed.