50 Pa. Super. 427 | Pa. Super. Ct. | 1912
Opinion by
The plaintiff’s land is situated on the south side of the Susquehanna river, about three miles below the mouth of Catawissa creek, which flows into it. By her amended statement she claimed that her land was permanently
At and prior to the floods referred to, the defendant owned and conducted two collieries at the headwaters of Nescopeck creek, and there was evidence that culm from these collieries was deposited, by the defendant, along the creek in such manner that it was carried down the creek into the river, thence down the river, and, by the floods referred to, onto the plaintiff’s land. There was sufficient evidence to warrant the submission of this question of fact to the jury; it was submitted fairly; and, therefore, the fact must be regarded as established by their verdict. But it appears that there were three other
The principles applicable to this class of cases are well settled by the decision, most of which are collected in Judge Henderson’s opinion in Pierce v. Lehigh Valley Coal Co., 40 Pa. Superior Ct. 566.
1. The proprietor of a mining operation has no right to discharge culm and other refuse of the mine into a stream, or to leave it where it will be carried, by ordinary floods, onto the land of other persons. If he does so dispose of it, he renders himself liable for any 'damages resulting therefrom to such owner. And, where the material is unlawfully put into the stream, the fact that an extraordinary flood was a contributing cause in carrying it onto the plaintiff’s land does not relieve the tort feasor from responsibility for his wrongful act.
2. A joint action cannot be maintained against several proprietors of coal operations acting independently, who thus cast culm into a stream, which is washed onto the land of another, but each is liable for the proportion of damages he caused, and that only.
Thus, in Little Schuylkill Nav. R. R. & Coal Co. v. French, 81* Pa. 366, which was affirmed by the Supreme Court, the learned trial judge charged the jury upon this last question as follows: “This is undoubtedly a difficult question to determine; from its very nature the truth only can be arrived at proximately. But it is nevertheless the duty of the jury to determine this according to the light which the evidence sheds upon it. You must take into consideration all the facts of the case, the places where these different deposits were made and how they were made, their nearness or distance from the plaintiffs’ land, the manner in which they were protected, their nearness or distance from the river bank, the relative amount thrown directly into the river compared with that deposited by its side, the relative number of deposits for which the defendants would be responsible, as compared with the others; these and many other things must be taken into consideration by the jury in determining how much of the coal dirt and other stuff in plaintiff’s dam and race the defendants are accountable for, and after all the result you will arrive at will probably be but an approximation of the truth. The matter is, in its very nature, uncertain.” This is very apt language to be used in the decision of this difficult question. So, in Gallagher v. Kemmerer, 144 Pa. 509, the argument was made that it was impossible to separate and ascertain the relative proportion of damage occasioned by the defendants’ act, but the case was held to be proper for submission to the jury with instruction as follows: “Now, in deciding that question, you are authorized to take into consideration
There are but two assignments of error: one to the refusal of the court to charge that, under the pleadings and all the evidence in the case, the verdict must be for the defendant; and the other to the denial of the defendant’s motion for judgment non obstante veredicto. The act of 1905 makes no radical change in the law or the relative functions of the court and jury, but broadens the power of the court and authorizes it, where binding instructions have been declined at the trial, to enter such judgment as should have been entered upon the evidence. If it appear that there is a conflict of evidence on a ma
The assignments of error are overruled and the judgment is affirmed.