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DETILLO v. CARLYN CONSTRUCTION (01/05/65)

decided: January 5, 1965.

DETILLO
v.
CARLYN CONSTRUCTION, INC., APPELLANT. DETILLO V. BALDWIN BOROUGH, APPELLANT



Appeals from judgments of Court of Common Pleas of Allegheny County, April T., 1960, Nos. 3009 and 3798, in cases of Nicholas A. DeTillo and Grace DeTillo, his wife, v. Carlyn Construction, Inc. and D. Carapellucci Company; and Same v. Borough of Baldwin.

COUNSEL

John A. Metz, Jr., with him Joseph M. McClure, Guy L. Warman, and Metz, Cook, Hanna & Kelly, for appellant.

Thomas M. Rutter, Jr., with him Goehring, Martin & Rutter, for borough, appellant.

Marvin D. Power, with him Suto, Goldstein, Balzarini & Walsh, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Roberts dissent as to the Borough.

Author: O'brien

[ 416 Pa. Page 470]

Nicholas A. DeTillo and Grace DeTillo, his wife, purchased Lot No. 443 in Carlyn Village, at the corner of Elaine Drive and Norma Drive, in the Borough of Baldwin, Allegheny County. They constructed a six room house with a game room in the cellar, and extensively landscaped the lot.

In June of 1955, an eighteen inch depression developed in the rear yard, and shortly thereafter, the depression increased in size to over three and one-half feet. Heavy rains followed, and water gushed from the depression to heights of five feet; the landscaping washed away and the depression increased in size. As a result of this movement of soil, the DeTillo

[ 416 Pa. Page 471]

    home settled and cracks appeared in the walls and ceilings, the panelling buckled, and the studding was separated from the floors.

Investigation and testing disclosed that an eighteen inch sewer pipe was running underneath the DeTillo land, and this sewer pipe had burst, causing the depression and the gushing water each time it rained.

The DeTillos then brought an action of trespass against the Carlyn Construction Company which had developed the land; the D. Carapellucci Company, which had installed the pipe; and a separate suit was brought against the Borough of Baldwin. The plaintiff-appellees' theory of liability against the developer and contractor was based on the negligent construction of the sewer pipe. The appellees' theory of the liability of the Borough was based on its statutory duty to inspect sewer lines and its duty to indicate the location of the sewer lines. At the trial in the court below, the cases were consolidated and the jury returned a verdict in favor of the appellees and against all the defendants in the amount of $11,500. After the denial of motions for judgment n.o.v., judgment was entered on the verdict; this appeal followed.

The appellant, D. Carapellucci Company, contends that the record in the court below does not contain evidence that the appellant actually constructed the defective sewer line. When we pass on a motion for a judgment n.o.v., certain principles of law must guide us as we view the evidence; we recognize that the mere happening of an accident is not evidence of negligence and that the burden is on the plaintiff to produce evidence which indicates that the defendant was negligent and that the negligence was the proximate cause of the injury. We are also bound by the rule ...


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