74 Pa. Super. 437 | Pa. Super. Ct. | 1920
Opinion by
The plaintiffs brought this action to recover damages because of the impairment of the health of the plaintiff wife and the destruction of trees, vines, etc., growing on their property, resulting, as they alleged, from the emission from the manufacturing plants of the defendant near-by of noxious fumes and vapors deleterious to health and destructive of vegetation. The defendant offered practically no testimony and rests its appeal for a reversal of the judgment in favor of the plaintiffs on the action of the learned trial court refusing to direct a verdict and thereafter to enter judgment n. o. v. in its favor. We are required therefore but to examine the testimony offered by the plaintiffs and determine whether or not it was sufficient in quantity and quality to support the verdict rendered by the jury.
It appears from the evidence the plaintiffs were the owners of a dwelling house in which they lived, which had been built by them in 1904. At that time and down until the latter part of the year 1915 or the beginning of the year 1916 the defendant company operated a steel mill in the near-by vicinity. During those years the plaintiffs were in no way inconvenienced or annoyed by the operation of the mill as then conducted. The ground about the house was planted with trees, vines and shrubbery, all of which flourished, while the health of the plaintiff wife was good and they were able to enjoy their home as by right they should be permitted to enjoy it. In 1915 the defendant erected, upon its own property, and within but a short distance of the home of the plaintiffs, what it calls a zinc plant, or what is spoken of in
She testifies that before these new mills began to operate they had an attractive grass lawn with five nice trees, with their back porch completely covered with a vine, with a vine also On the front porch, and bushes, flowers and trees, all tending to make their home attractive and comfortable. She says about the middle of August, 1916, the trees and shrubbery began to show the effects of the new conditions. In the morning they looked as if there had been heavy frosts and the leaves were all off the trees and on the ground. In the following spring the leaves came again on trees and vines but only survived a short time, while in the spring of 1918 there was no vegetation at all. She finally testifies that in August of 1918 they moved to another town and since their removal, down to the time of trial, her health had very much improved although she had not yet entirely regained it.
The strength of the argument earnestly urged upon us by the able counsel for appellant is that in all of the evidence we have summarized, and more to the same effect, there is an absence of any competent or sufficient foundation for an inference by the jury that there was any causal relation between the presence of the fumes and vapors from the defendant’s mills and the injuries to the plaintiff and her property which she so clearly describes. This argument appears to rest on the proposition, said to be drawn from several decisions of the Supreme Court, that it would be impossible in law for the plaintiff to produce evidence to warrant a verdict in her favor without having the fumes and vapors subjected to a chemical analysis and without calling to her aid the testimony of experts. Without such testimony he argues the jury necessarily was left to grope in the domain of
It seems to us the case at bar readily distinguishes itself from cases like Gosser v. Ohio Valley Water Go., 244 Pa. 59, and Bruggeman v. York, 254 Pa. 430. Where a specific human disease has been scientifically traced to the existence of a particular germ, and that germ may be propagated in many different ways and under many differing conditions, it may well be that a jury should not be permitted to select at will any one of a number of possible and more or less probable causes for the existence of the germ, and thus visit upon the defendant entire responsibility for its dangerous presence. An examination of the facts in Ribblett v. Cambria Steel Company, 251 Pa. 253, will exhibit a case widely different from the one at bar. The plaintiff’s burden was to show that a failure of his crops and the loss of some trees were attributable solely “to the noxious gases from the defendant’s dump which was anywhere from one thousand to four thousand feet distant and in a spot where the prevailing winds would carry the fumes away from rather than to the plaintiff’s land. Under such circumstances it is not strange that Mr. Justice Moschziskeb, declared in his opinion: “It was the duty of the plaintiff to produce the evidence of an experienced chemist who could give the court and jury the benefit of his special knowledge,” etc. But it appears to us that in an attempt to draw from that decision the broad proposition that, in a case like the present one, the plaintiff
The plaintiff did call the physician who attended her and we suppose he could be fairly classed as an expert. For some reason he was one of the reticent members of that class who appear to think because they cannot testify to a demonstrable fact, they will not permit themselves to give an opinion even when that is all they are asked to give. He testified in relation to her throat condition, “I couldn’t tell you what caused it; I couldn’t prove what caused it.” He did, however, answer the following question: “Would it naturally arise from the inhalation of the vapors of the acid mill? A. If a person would breathe them, it would.”
After a careful review of all of the evidence of the plaintiff, we are all of the opinion that the learned trial judge was correct in submitting the questions of fact to the jury, and as there is no complaint of the manner of the submission and no allegation of any trial error,
Judgment affirmed.