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DUSSELL v. KAUFMAN CONSTRUCTION CO. (01/18/60)

January 18, 1960

DUSSELL
v.
KAUFMAN CONSTRUCTION CO., APPELLANT.



Appeals, Nos. 266, 267 and 268, Jan. T., 1959, from judgments of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1956, No. 172, in case of Leonard Dussell et al. v. Kaufman Construction Company, Inc. Judgments affirmed; reargument refused February 15, 1960. Trespass. Before GUERIN, J., without a jury. Adjudication filed finding for plaintiffs and against defendant, defendant's exceptions to adjudication dismissed, and judgments entered on the findings as amended. Defendant appealed.

COUNSEL

Herbert A. Barton, with him Swartz, Campbell & Henry, for appellant.

Benjamin Kuby, with him Klovsky and Kuby, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Musmanno

[ 398 Pa. Page 370]

OPINION BY MR. JUSTICE MUSMANNO

In May, 1955, the Kaufman Construction Company contracted with the Delaware River Port Authority to construct the Philadelphia approach for the magnificent Walt Whitman Bridge which now spans the Delaware River joining Philadelphia to Camden, New Jersey. In order to lay the foundation for the roadway

[ 398 Pa. Page 371]

    leading to the bridge, it became necessary to drive piles into the terrain some 36 feet below the surface. The operation of pile-driving is an earth-shaking affair, and this is inevitably so since it involves the violent displacement of soil. The distance that the vibrations radiate from the focal attack depends on many factors: the diameter of the earthly perforation, the type of the pile which is being driven, and most of all, of course, the mechanical force being used to propel the pile downward. The equipment used here was a steam hammer with a ram weight of 5000 pounds, and a drop of 3 feet 3 inches, producing a driving force of 16,000 pounds of energy on each blow, operating at an average of 60 blows per minute.

It was testified and not controverted that the vibrations from the pile driving affected the ground for at least 25 feet in every direction. Within this affected area to the north of the defendant's right of way rested three houses which suffered considerable damage as the result of the subterranean borings. The houses were of the row type. One, located at 3019 South 15th Street, was owned by Sara Larmer and directly adjoined the bridge approach. Another, at 3017 South 15th Street, attached to the Larmer property and, in part, supported by it, was owned by Margaret Davis. The third fronting at 3016 South Carlisle Street, was located immediately behind the Davis property and was owned by Leonard and Winona Dussell. These owners brought an action in trespass against the Kaufman Construction Company and the case, tried without a jury before Judge GUERIN of the Court of Common Pleas No. 4 of Philadelphia County, ended in verdicts in favor of the plaintiffs. The defendant appealed, asking for judgment n.o.v.

In their complaint the plaintiffs charged that the defendant was responsible in damages for one or more of three reasons: (1) negligence in performing the piledriving

[ 398 Pa. Page 372]

    operation; (2) pile-driving is an ultra-hazardous activity which imposed on the defendant absolute liability for all resulting damage; (3) the defendant operated and maintained a nuisance. We do not need to consider reasons 2 and 3 because the record quite clearly establishes that the Trial Court was justified in concluding that the defendant performed its work in a negligent manner.

Before initiating its project, the defendant sent a professional engineer to inspect, and take photographs of, the plaintiffs' properties, both within and without. It thus became thoroughly acquainted with the three houses, their construction, solidity or fragility, proximity to the line of the intended borings and their prospects of withstanding the subterranean violence with which they were soon to be assaulted. The defendant knew, as a result of this detailed inspection and examination, that suitable precautions had to be taken to avoid damaging these dwellings which were obviously not Gibraltars of structural formidableness. They were modest two-story-and-basement brick residences at least thirty years old and built over filled-in land. The defendant knew that the pile-driving would penetrate below the level of their foundations which had a depth of only 8 feet five inches. It knew that it intended to bore to a depth of 36 feet, obviously far below the stratum of land which supported the structures above.

In addition to these physical realities, the defendant was on notice from the Port Authority as to its responsibilities. One of the specifications of the contract with the Authority provided that: "The contractor shall exercise every precaution to see that no injury is done to any existing structure due to his operations."

The contract said further: "Piles shall be driven well in advance of the filling and must be completed in units of work satisfactory to the engineers so that filling ...


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