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March 20, 1950


Appeals, Nos. 64 to 70, inclusive, Jan. T., 1950, from judgments of Court of Common Pleas of Lycoming County, March T., 1947, Nos. 44 and 45, and 47 to 50, inclusive, and Sept. T., 1947, No. 53, in case of Gilbert S. Carlson et al. v. A. & P. Corrugated Box Corporation. Judgments affirmed.


S. Dale Furst, Jr., with him Harry Alvan Baird and Furst, McCormick, Muir & Lynn, for appellant.

Marvin D. Power with him Michael J. Maggio and Margiotti & Casey, for appellees.

Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.

Author: Stern

[ 364 Pa. Page 217]


This appeal is based upon two contentions: -- (1) that defendant's negligence did not cause any damage to plaintiff that would not have occurred even if such negligence had not existed and therefore it was not a proximate cause of plaintiff's injury; (2) that, even if defendant's negligence did cause damage to plaintiff that would not otherwise have occurred, defendant

[ 364 Pa. Page 218]

    should be held liable only for such part of the damage as was caused by defendant's negligence alone.

The facts are these: -- Plaintiff was a resident of the Borough of Austin in Potter County, where he owned a building on Main Street in which he conducted a store for the sale of hardware. Defendant is a corporation engaged in the manufacture of paper and paper products, and in connection with its operating plant it maintained a timber crib dam across the North Branch of Freeman's Run about 1 1/2 miles north of Austin and at an elevation of about 188 feet above the level of the Main Street bridge over the North Branch. This dam was approximately 580 feet in length; its slope, facing downstream, measured 32 feet; it was 22 feet in height; it had been built in 1910 and enlarged in 1920 to raise the normal flow line of the reservoir about two feet by covering the dam with an earth fill; it had an opening or spillway at the center formed of heavy planks, and it impounded about 65 million gallons of water at the spillway crest. Toward midnight of July 17-18, 1942, a heavy rain started in the watershed of the North Branch and continued more or less sporadically during the entire morning and early afternoon of the following day. At about 11:00 A.M. on July 18 a large part of the spillway came out, the earthen embankment started to wash away, and the impounded water, being thereby released, flowed in a huge wave down the stream, raising the water on Main Street in the Borough to a height of about 8 feet, sweeping into and through many of the buildings, destroying pavements, washing out streets, and carrying houses a distance of from several hundred feet to a quarter of a mile. Plaintiff's store and merchandise were damaged by the flood. He brought action against defendant corporation to recover for its alleged negligence in failing properly to repair and maintain the dam; his suit, together with those of others who had suffered similar

[ 364 Pa. Page 219]

    injuries, was transferred, by an order of this court, from Potter to Lycoming County, where it was tried by Hon. Don M. LARRABEE, sitting, by agreement of the parties, without a jury. Findings were made by the learned trial judge in favor of plaintiff and judgment was entered in accordance therewith, from which judgment defendant now appeal. By agreement of counsel all the appeals in the other cases are to be treated as if filed in the present appeal.

From the manner in which the case was tried in the court below it seems to have been assumed that the heavy rainstorm of July 18 was an act of God, but there is grave doubt whether, from a legal standpoint, it should be so considered. An act of God, as defined in the law, is an unusual, extraordinary, sudden, and unexpected manifestation of the forces of nature which cannot be prevented by human care, skill or foresight: 38 Am. Jur. 649, ยง 7; Martin v. Philadelphia, 54 Pa. Superior Ct. 563, 567. Was this storm so unusually severe or otherwise extraordinary as to warrant its characterization as an act of God? In determining whether a flood is or is not extraordinary there must be taken into account the character of the particular stream, the adjacent territory, and the history of previous floods: Brown v. Pine Creek Rwy. Co., 183 Pa. 38, 52, 38 A. 401, 403. The evidence here was that the rain was torrential but not in the nature of a cloudburst nor of any unprecedented, overwhelming violence or fury; witnesses testified that it was a flash similar to others that had frequently occurred in that part of the country in previous years, a flash flood being defined by them as one that merely brought ...

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