425 Pa. 512 | Pa. | 1967
Opinion by
This is an appeal by the plaintiffs, from judgment of compulsory nonsuit. Plaintiffs, August DeFrank and Clara DeFrank, his wife, own two buildings in the
The appellee, Sullivan Trail Coal Co., was engaged in strip mining coal in the westerly section of the City of Hazleton, and in the course of its work, used explosives. Shortly before 1:00 o’clock in the afternoon, a fire was discovered on the second floor of the two story building. Appellants sued appellee in trespass, alleging that an explosion, set off by defendant, shook the ground, causing a short circuit in the electrical terminal box, in the building on the second floor, from which the arcing electrical current started the fire. The trial judge, at the conclusion of plaintiffs’ case, on motion by defendant, granted a compulsory nonsuit. Later, after argument before the court en banc, the plaintiffs’ rule to remove judgment of compulsory non-suit was discharged. This appeal followed.
We must be guided in our review by the rule that: “In considering the appeal from the refusal of the court below to take off the nonsuit, appellant must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in his favor [citing cases].” Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A. 2d 676 (1966).
The factual determination to be resolved was who or what caused the fire, Mr. DeFrank’s contention being that the blasting of the appellee in its coal mining operation caused the building to shake and short circuit the terminal box. He testified that at about 10:30 that morning, while sorting and grading rags in the performance of his work, a blast was set off that shook the building. At the time the fire broke out, however, no one was in the two story building, Mr. DeFrank
The parties at trial stipulated: “. . . that in accordance with practice and custom the defendant corporation, within two weeks following the date of this fire, which was on February 24, 1962, the defendant corporation furnished the City of Hazleton with a copy of the company’s records showing that at its Crystal Ridge stripping operation in Hazleton two shots were fired, one at 12:30 p.m. and one at 12:32 p.m.; that this information is taken from and corresponds with the original records of the defendant corporation.” The record does not show, although in the opinion of the court en banc there is the statement, that the blasting conducted by the defendant in connection with its strip mining of anthracite coal was on a tract of land located approximately 800 feet west of the appellants’ property.
The hypothetical question propounded by appellants’ counsel to both the expert witnesses, Mr. Lesh and Mr. Murphy, was: “. . . assuming that overhead service wire conductors connected to the power line on a pole entered the second floor of a building through a conduit in the wall; assuming that the wire conductors passed through the conduit to the intei’ior of a meter terminal box fixed on the wall; assuming that the wire conductors passed from the meter terminal box to the main switch on the wall; assuming that meter terminal box was sealed; assuming that there was no trouble or difficulty whatever with the current or wiring in the building prior to February 24, 1962; assuming that on February 24, 1962, at or about 12:30 an explosive blast occurred in the vicinity of the building—that is 12:30 p.m.; assuming that at the time of the blast the ground in the vicinity of the building shook; assuming that on or about 12:45 p.m. on the
Mr. Murphy was propounded the same hypothetical question and his answer was: “A. That it was caused by the blasting in the adjacent stripping.” And he also said: “A. I said there had to be a disturbance in the box to cause the ground that was created, and I attributed that disturbance in the terminal box—the vibration of the shock wave or the ground wave from the blast that was supposed to have occurred at that
The record reveals that the assumptions of fact in the hypothetical question were in evidence and it would have been proper to submit the evidence and the testimony of the expert witnesses to the jury. Hypothetical questions, must, of course, be based on matters which appear in the record and on facts warranted by the evidence. Gordon v. State Farm Life Ins. Co., 415 Pa. 256, 260, 203 A. 2d 320 (1964); Donaldson v. Maffucci, 397 Pa. 548, 558, 156 A. 2d 835 (1959); Karavas v. Poulos, 381 Pa. 358, 365, 113 A. 2d 300 (1955); Roberts v. Pitt Publishing Co., 330 Pa. 44, 51, 198 A. 668 (1938). There was, in the instant case, sufficient evidence to warrant the hypothetical question propounded.
Since we have determined that the refusal to remove the entry of judgment of compulsory nonsuit was
Judgment reversed with a venire facias de novo.