No. 2099 October Term 1978, Appeal from the Order of the Court of Common Pleas, Luzerne County at No. 2360, October Term, 1972.
Joseph J. Musto, Wilkes-Barre, for appellant.
Richard J. Confair, Wilkes-Barre, for appellee.
Price, Spaeth and Lipez, JJ. Price, J., dissents.
[ 270 Pa. Super. Page 246]
This is an appeal from an order granting a new trial. The trial judge refused the plaintiff's (appellee's) request for a res ipsa loquitur instruction, but the lower court, sitting en banc, held that the instruction should have been given.
The case concerns a water main break that occurred in Wilkes-Barre on May 28, 1972. Appellee's store, which was on the first block of South Main Street, suffered substantial
[ 270 Pa. Super. Page 247]
damage as a result of the break. Appellant owned the water main. The main was a ten inch main and made of cast iron, and had been installed in 1888 by appellant's predecessor the Spring Brook Water Company, Record at 34a, 45a. Trolley cars, running on tracks and propelled by overhead electricity, operated on the block in question from the 1920's until 1950. Record at 39a. The tracks were removed in 1951. Record at 40a.
Appellee called one Julius Pfau, who was qualified as an expert in the field of civil engineering. Pfau testified that the break in the water main would not have occurred if the main had been properly maintained, installed and inspected, Record at 125a; that the cause of the break was corrosion due to electrolysis, Record at 133a; that the continued use of the main from 1888 to 1972 was inconsistent with good industry standards, Record at 144a; and that given the condition of the main, the pressure inside it was excessive, Record at 157a. Pfau offered his opinions in response to a lengthy hypothetical; he had had no opportunity to inspect or perform any tests on the thirteen foot piece of the main that was removed after the break occurred. Record at 128a.
Appellant called several of its employees, who described the damaged water main. One of the employees, Joseph Lubinski, was qualified as an expert in the field of civil engineering. Lubinski testified that the break was not caused by electrolysis, Record at 278a, but rather by undue stresses resulting from some type of abnormal external loading, Record at 282a. He also testified that the stresses could have been caused either by movements in the ground or by some activity above ground, or by a combination of these. Record at 296a. Lubinski further testified that part of the main under the first block of South Main Street had been exposed thirty-nine times between 1925 and 1972 in order to connect it with subsidiary lines to various business establishments, Record at 294a, and that this exposure would have enabled appellant to determine whether the main was defective. Record at 300-301a.
[ 270 Pa. Super. Page 248]
The trial judge instructed the jury that it could find appellant negligent if it believed Pfau's testimony about the corrosion of the main. The judge refused appellee's request for a res ipsa loquitur instruction, to be worded consistent with Section 328D of the Restatement (Second) of Torts. The jury returned a verdict in favor of appellant. As has been indicated, appellee made a motion for a new trial, arguing that the trial judge should have given the requested instruction, and the lower court, sitting en banc, granted the motion.
Appellant makes two arguments. First, it argues that appellee was not entitled to a res ipsa loquitur instruction because appellee had offered specific evidence of negligence; and second, that appellee was not entitled to the instruction ...