208 Pa. 362 | Pa. | 1904
Opinion by
This action was to recover damages for loss sustained by the plaintiff, a lower riparian owner, by reason of the deposit of coal dirt in his mill dam and race and on a portion of his land. The plaintiff’s property was on a bank of the Little Schuylkill river, from which his water power was derived. The defendant owned a number of collieries near the banks of Panther
The main objection urged to the charge is that it tended unduly to lead and control the jury, and was prejudicial to the plaintiff. In the part objected to the learned judge told the jury that their verdict should be founded on the evidence, and cautioned them not to be influenced by sympathy or prejudice, and in clear and distinct but temperate language admonished them that a disregard of this instruction might lead to a setting aside of their verdict. This was followed by a statement of the rights of each of the parties, the ground of the defendant’s liability if any existed, and the measure of damages in the event of a recovery. It was the right of the judge to give this caution, and in view of the passions and prejudices that grew out of the labor troubles in the anthracite coal regions in 1902 and which existed at the time of the trial, it may be said to have been his duty to charge as he did. In the recent case of Stevenson v. Ebervale Coal Co., 203 Pa. 316, it was said : “ It was the clear duty of the court below in peremptory language to hold the jury down to the lawful damages, and if they disregarded the instruction to set aside the verdict. What the plaintiff had a right' to ask was that he be made whole-, not rich. It was the duty of the court to see that this result and this alone was reached.” This is always the rulé.
Prima facie the measure of damages was the cost of removing the refuse deposit, and the instruction on this subject was in accordance with the rule stated in Stevenson v. Ebervale Coal Co., 201 Pa. 112. The defendant was not answerable for the acts of its lessees who operated collieries in the basin of Panther creek done without its knowledge and consent. The objection was properly sustained to the plaintiff’s witness called as an expert as to the value of the property, since his knowledge was limited to the value of farm lands in the vicinity, and the property was to be considered as a whole, including both the farm and the mill site. The assignments to the admission of expert evidence offered by the defendant are not in compliance with the rule that the testimony admitted under objection should be set out in the assignment.
The judgment is affirmed.