Butchers' Ice & Coal Co. v. Phila.

Citations

• 156 Pa. 54
• 27 A. 376
• 1893 Pa. LEXIS 1311

Syllabus

<p>Practice, S. G. — Assignment of error — Evidence.</p> <p>An assignment of error to the admission of evidence which fails to set forth the evidence admitted under the exception is defective.</p> <p>Wharves — Sewers—Damages—Evidence.</p> <p>In an action against a municipality to recover damages for an injury to a wharf caused by deposits from a sewer, it is competent for the plaintiff to show that the injury could have been avoided by an extension of the sewer to the end of the adjoining wharf which was the property of the city.</p> <p>Plaintiffs owned a wharf extending into the river one hundred and sixty-two feet. The adjoining wharf owned by defendant, a city, extended into the. river two hundred and seventy-five feet. Between these wharves was a dock sixty feet wide into which the city opened a sewer at a point on the inner side of the dock forty-seven feet from plaintiff’s wharf. Deposits from the sewer obstructed the dock. It was not denied that the injury could have been avoided by the extension of the sewer to the end of the city’s wharf. The ordinance authorizing the sewer was passed after the adoption of the constitution of 1874. Held, that plaintiff could recover.</p> <p>Malone v. City, 2 Penny. 370; Carr v. Northern Liberties, 35 Pa. 324; Fair v. City, 88 Pa. 309 ; and Collins v. City, 93 Pa. 272, distinguished.</p> <p>Consequential damages — -Constitution of 1874, art. 16, § 8.</p> <p>In the above case the liability of the city was for consequential damages under art. 16, § 8, of the constitution of 1874, and was not affected by the fact that the sewer was on the city’s land, and opened into a dock adjoining the city’s wharf; nor was it necessary to the existence of the liability that the land on which the sewer was constructed should have been taken by the city in the exercise of the right of eminent domain.</p>