67 A.2d 641 | Pa. Super. Ct. | 1949
Argued March 22, 1949. Plaintiffs brought this action in trespass against Marion H. Garrett and Robert H. Garrett to recover damages for the injurious acts committed by trespassing domestic animals. At the trial the court directed a nonsuit as to the one defendant, Marion H. Garrett, and submitted the case against Robert H. Garrett to the jury, which rendered a verdict in favor of plaintiffs. Motions for new trial and judgment n.o.v. were filed on behalf of Robert H. Garrett, and the action of the court *620 below in refusing the motions is here assigned as error by him on this appeal.
Appellant contends that there was no evidence from which the jury could properly find that he had possession of the trespassing animals which caused the damage; and that the trial court erred in permitting, over appellant's objection, witnesses who had never seen the premises prior to the damage to testify as to the steps necessary to restore the premises to the former condition.
There is no merit in appellant's first contention. The jury having returned a verdict for plaintiffs, we are obliged to view the evidence and all the inferences to be drawn therefrom in the light most favorable to them. Ashworth v. Hannum,
Ordinarily a witness who has never seen the premises before the damage thereto occurred is not competent to testify concerning its original condition. Gallagher v. Kemmerer,
The trial judge overruled appellant's objection to testimony by a landscape gardener called to estimate the work necessary to restore the damaged lawn and spring. On direct examination, he was asked: "Q. Can you tell the Court and Jury how you arrived at what the physical damage was? A. I was down one time. I thought I could fix it up, that is, patch it up, but they called me back the second time. That was later in October. Then I found out the only thing I could do was disk it up, put new top soil on, regrade it and fix the whole thing all over again, that is, sod it, to put grass on like it was before. Mr. Storb: That last statement I object to, `put grass on like it was before.' . . . The Court: The objection is overruled." However, the witness did not undertake to describe the original condition of the premises, but confined his testimony to a statement of what measures would be necessary to repair the damages, a subject upon which he was competent to testify by reason of his experience as a landscape gardener. The phrase "like it was before" was a convenient way of referring to the testimony of the plaintiffs, which they had given, and in which they described the original condition of the lawn from their own personal observation. It is proper, in actions involving loss of or damage to *622
property, first to prove the character of the property immediately before loss or damage by a witness who has personal knowledge thereof, and then to prove the value or the cost of repair of the property by a qualified witness whose special knowledge enables him to arrive at such an estimate based upon information derived from the testimony of the first witness. Mishv. Wood,
Judgment is affirmed.