Albert H. Friedman, Philadelphia, for appellant.
Samuel Kravitz, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 622]
In this trespass action brought in the Municipal Court of Philadelphia County defendant has appealed from the refusal of the court below to grant his motion for judgment n.o.v. See Fitzpatrick v. Bates, 92 Pa. Super. 114, 116. The issue is the sufficiency of the evidence to sustain the findings of the trial judge.
[ 168 Pa. Super. Page 623]
The case was tried before a judge, sitting without a jury, under the provisions of section 12 of the Act of July 12, 1913, P.L. 711, as amended, 17 P.S. § 695.
The trial judge made a finding in favor of each of the two plaintiffs. Defendant's motions for new trial and judgment n.o.v. were refused, and judgments were entered on the findings.
Plaintiffs occupied adjoining storerooms on the ground floor of the four-story building located at the northeast corner of 8th and Arch Streets, in the City of Philadelphia. Defendant occupied the entire second floor of this building which was directly over the stores of the plaintiffs; defendant's occupancy and control of the second floor were exclusive. When plaintiffs opened their stores for business on the morning of May 25, 1949, they discovered that water had seeped through the ceiling and down the walls, causing damage to their storerooms and merchandise. The respective places of business were undamaged when closed by plaintiffs the previous evening. The water came from the second floor over plaintiffs' stores. This second floor was used by defendant for manufacturing purposes. A toilet was located on this floor over the rear portion of plaintiffs' stores. Upon going to the second floor to locate the source of the water, plaintiffs met defendant, who said he had called the landlord's attention many times to the fact that the toilet was out of order. The floor in the toilet room was saturated with water and this condition extended for ten feet beyond. Rags had been used in an attempt to absorb the water on the floor. The top of the water tank to the toilet had been removed.
Defendant offered no evidence but submitted a point that the finding must be for the defendant.
Proof of negligence was necessary for plaintiffs to recover from defendant. But ...