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RESSLER ET AL. v. GERLACH. (03/18/59)

March 18, 1959

RESSLER ET AL., APPELLANTS,
v.
GERLACH.



Appeal, No. 26, Oct. T., 1959, from judgment of Court of Common Pleas of Lancaster County, Feb. T., 1958, No. 4, in case of Lester G. Ressler et al. v. Claude M. Gerlach. Judgment affirmed.

COUNSEL

Robert Ruppin, for appellants.

Carl G. Herr, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Gunther

[ 189 Pa. Super. Page 193]

OPINION BY GUNTHER, J.

This appeal involves a suit in trespass where the jury found for the plaintiffs and the court below granted defendant's motion for judgment n.o.v.

Plaintiffs own a piece of property in East Hempfield Township, Lancaster County and the defendant owns a lot across the street. The source of plaintiffs' water supply was a 34-foot well, which until October, 1957, produced sufficient good drinking water. On or about October 14, 1957, defendant sunk a 30 foot hole approximately 4 inches in diameter at the top and over 1 inch at the bottom on his own land and about 90 feet distant from the well of the plaintiffs. The purpose of sinking the hole was to facilitate drainage of sewage from three septic tanks servicing defendant's apartment building.

Plaintiffs had notice that the hole was being dug for drainage purposes. Three days after the hole was sunk the water in plaintiffs' well became unfit for use. Defendant upon complaint from plaintiffs withdrew the pipe from the hole and covered the opening with dirt. The well water subsequently became usable for a period of one week, but later the well went dry.

[ 189 Pa. Super. Page 194]

No tracer tests were made to determine whether the drainage from defendant's property caused the contamination of the well.

The question before us is whether there was sufficient evidence of negligence on defendant's side to send the case to the jury. The lower court decided that sufficient evidence was lacking to send the case to the jury and entered judgment n.o.v.

Plaintiffs contend that defendant was well aware of the circumstances surrounding the well, and that construction of the septic tanks, digging of the hole and disposing of the sewage was negligence attributable to the defendant. It is also claimed that defendant knew the depth of plaintiffs' well and that if sewage were drained to that depth the well would become contaminated. Plaintiffs argue that digging of the hole and draining the sewage was reckless, negligent and malicious. The record, however, shows that defendant after digging ...


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