Appeals, Nos. 43, 44, 45 and 46, March T., 1959, from decrees of Court of Common Pleas of Allegheny County, Jan. T., 1952, No. 2642, in cases of Carl M. Kosco, executor of the estate of John Kosco, deceased et al. v. Hachmeister, Inc. et al., and Helen Drwinga v. Same. Decree as to plaintiff Drwinga affirmed; decree as to plaintiff, executor, and decree as to individual plaintiff, in each case modified, and, as modified, affirmed. Equity. Before DUFF, J. Adjudication filed finding for plaintiffs, exceptions of defendants, Dobson, and corporation, dismissed and final decree entered. Defendants, Dobson and corporation, appealed.
John G. Koedel, with him Alice D. Tobias, for appellants.
John A. Metz, Jr., with him David Friedman, Guy L. Warman, Joseph B. Mitinger, and Mets, Cook Hanna & Kelly, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BOK
The basic question in this case has once been resolved, in Lugin v. Dobson & Hachmeister Co., 376 Pa. 620 (1954), when a decree awarding damages to the plaintiff was affirmed.
The property of the present plaintiff Drwinga is next to that of Lugin, and Kosco's lots are the fourth and fifth away on the other side. Beyond a reminder, it is unnecessary to repeat all of the facts. There is a group of homes in McKees Rocks, near Pittsburgh, set on a steep hillside between Stowe Avenue and Island Avenue. Downhill and across Island Avenue is the Hachmeister property, from which Dobson, its contractor, removed ten thousand tons of earth in a grading operation during December, 1949.
The Chancellor found that within a month after the excavation an earth movement began toward the excavation along the face of the Hachmeister embankment, affecting not only the bed and sidewalks of Island Avenue but the plaintiffs' properties as well. Their houses so cracked and buckled that they had to abandon them in 1952. The Chancellor also found that the movement was triggered by the defendants' negligently removing lateral support from the hillside, with the result that a small landslide occurred. The real issue was whether the causation was a landslide or a creep, which is the slow and imperceptible downhill movement of land responding, as it does on any hillside in the world, to the force of gravity: creep is not great enough to damage structures built on the land.
Experts testified for both sides. The evidence given by Doctors Gotolski and Ridge, for the plaintiffs, covered
about 1400 pages of the original record and 230 pages of the printed record. These men were examined and cross-examined on every conceivable phase of the case: the location of the heel and toe of the earth movement, the depth of the slide plane, the rate of creep, the effect of pore water pressure and of precipitation, the kind of soil and detritus, the cause of upward buckling, the geological formation of the area, and the like. Both men said flatly that the damage to the properties of the plaintiffs was caused by a landslide let loose by the excavation on the Hachmeister land.
Defendants argue that the physical facts are incontrovertible but this cannot be so when they must be established by one of two opposing versions. Only when the basic facts are the same under both versions can they be said to be beyond controversy. The fact that the Kosco houses buckled upward, which defendants say could not happen in a landslide, was explained by Dr. Ridge's testimony that there was a series of slides higher up the hill ...