Appeal, No. 386, Jan. T., 1958, from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1954, No. 8932, in case of Harry Luterman et al. v. City of Philadelphia. Judgment affirmed. Trespass. Before WATERS, J. Verdict for defendant, plaintiffs' motion for new trial overruled, and judgment entered. Plaintiffs appealed.
Melvin Alan Bank, with him Maurice Abrams, for appellants.
Vincent C. Veldorale, Assistant City Solicitor, with him Bernard S. Cheskin, Assistant City Solicitor, and David Berger, City Solicitor, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
The plaintiffs sued in trespass to recover for loss suffered by reason of damage caused by the flooding of their business premises by water which leaked from the city's water line adjacent to their property. The jury's verdict was for the defendant. Plaintiffs' motion for new trial was based on instructions to the jury which, the plaintiffs contend, amounted, erroneously, to binding instructions for the defendant. The court below refused the motion for new trial and directed the entry of judgment on the verdict. The plaintiffs have appealed. It is a well settled principle of law that the granting or refusal of a new trial is within the sound discretion of the trial court, and this Court will not reverse the trial court unless the record shows that this discretion was clearly and palpably abused. Streilein v. Vogel, 363 Pa. 379, 69 A.2d 97; Frank v. W. S. Losier and Co., Inc., 361 Pa. 272, 64 A.2d 829.
It is not necessary to review the testimony in detail since plaintiffs concede that the case presented a jury question and are complaining only of trial error. Both parties filed an agreed statement of facts in lieu of printing the Record. From that statement we learn that a fire hydrant in front of the plaintiffs' premises had been struck and damaged by an automobile truck, necessitating its removal and replacement by employees of the city's water department. In order to replace the broken hydrant, it was necessary for the workmen to excavate around it to a depth sufficient to reach the connection between the hydrant and the water main. The work was not completed on the first day, and when the city's employees returned on the morning of the
second day the premises of the plaintiffs were flooded with water, causing substantial damage.
Plaintiffs' theory of the case and their evidence was to the effect that although the City was not responsible for the original damage to the fire hydrant, the City was liable for its negligence in failing to take adequate measures while repairing the damage so as to prevent water from escaping into plaintiffs' adjoining business premises. Plaintiffs contended and introduced evidence to prove: (1) that the repairs were not adequately made so that the hydrant leaked during their course; (2) that, at the close of the work day the hydrant was not properly shut off; and (3) that no adequate precautions were taken at the close of the work day to assure that the condition in which the hydrant was left, assuming it to have been proper, was not disturbed.
There was conflicting testimony as to whether water was still leaking from the hydrant when the employees of the City left for the day, and as to whether there was water in the excavation made by the City. The damage to plaintiffs' premises admittedly could have been found by the jury to have been caused during the night following the City's first day's work when water from the hydrant leaked into the ground floor of the plaintiffs' property. The Trial Judge carefully reviewed all the evidence in his principal charge to the jury. The jury returned for further instructions and it is the Judge's replies to these inquiries which are the basis for this appeal.
When the jury returned for further instructions they posed two questions to the court: "Was there a valve close enough to the hydrant to close the water off from the hydrant and at the same time leave the water on in the main. The second is, does taking sufficient care ...