Herron v. Jones & Laughlin Co., Appeal, No. 88

Appeal, No. 88 | Pa. Super. Ct. | May 22, 1903

Opinion by

Henderson, J.,

The plaintiff brought two actions against the defendant company at No. 8 and No. 496, March term, 1902, in the court of common pleas of Allegheny county. In the first the defendant was charged with negligence in the prosecution of its business in that it permitted limestone and iron ore to be blown out of one or more of its furnaces, by means whereof the house and lot of the plaintiff, situated about 200 feet from the furnace, were damaged and made uninhabitable.

In the second case it was charged that the defendant brought large quantities of iron ore into its ore house, situated about 200 feet from the house and lot referred to, and that in the prosecution of its business it caused quantities of ore to be blasted carelessly and negligently thrown against the house and upon the lot of the plaintiff, thereby endangering the lives of the plaintiff and his family and damaging the house in which they lived.

By agreement of counsel the cases were tried together, the verdict to include both cases. It was further agreed that the cases should be disposed of on the claim for damages arising by reason of the blasting of the ore, and that the evidence and claim relating to damage from the operation of the furnaces should be eliminated.

The first three assignments of error relate to the sufficiency of the evidence to justify the submission of the case to the jury. An examination of the evidence satisfies us that there was no error on the part of the court in refusing to affirm defendant’s first, second and third points. The evidence for the plaintiff was of such a character that it was the duty of the court to submit the case to the jury. It appeared from the defendant’s own evidence that in the winter when the weather was very cold, the ore used by the defendant at its furnaces was frozen to such an extent that it became nepessary at times to blast it in the ore house or on the cars; and the testimony of the plaintiff and his wife tends to show that portions of this ore were frequently thrown by the blasting against the house and on to the lot of the plaintiff, and the evidence offered by the plaintiff, if believed by the jury, would warrant a verdict in his favor.

The fourth, fifth, sixth and seventh assignments of error relate to the measure of damages, and upon the subject we think the rule stated by the court is not applicable to the case under consideration. The only question tried under the agreement of counsel was, whether the plaintiff sustained damage by reason of the negligent blasting of ore in the cars or ore sheds. It does not appear from the testimony in the case that the blasting of the ore is inseparably connected with the business of the defendant, or that it is a usual and customaiy incident of the business in which the defendant is engaged. The only occasion for blasting arises during a short period in the winter when the weather is so cold that the ore becomes frozen and unsuitable for use before it is broken up by the use of explosives. There is nothing in the case to indicate that this practice of the defendant might not be abandoned or practicable means adopted to prevent any injury to which the plaintiff or his propérty might be subjected. The business of the defendant is a lawful one, in which it has been engaged for many years, and the plaintiff would only be entitled to recover for such substantial injury to himself, his family or his property, as he might be able to show. The only question of damage submitted to the jury was that affecting the real estate, and the measure of damage applicable under the facts of the case is the cost of the restoration of the property to the condition in which it was before the injury was sustained, unless such cost should equal or exceed the value of the property, in which case the value is the correct measure of damages, and the period to which the damage is to be estimated is the time of the commencement of action. The plaintiff would also be entitled to recover the value of the premises during the period for which he lost its use by reason of the alleged trespass of the defendant, and the expense incident to his removal therefrom : Lentz v. Carnegie Bros. & Co., 145 Pa. 612" court="None" date_filed="1892-01-04" href="https://app.midpage.ai/document/lentz-v-carnegie-bros-6354035?utm_source=webapp" opinion_id="6354035">145 Pa. 612; Harvey v. Susquehanna Coal Co., 201 Pa. 63" court="Pa." date_filed="1902-01-06" href="https://app.midpage.ai/document/harvey-v-susquehanna-coal-co-6246483?utm_source=webapp" opinion_id="6246483">201 Pa. 63.

It follows, therefore, that the fourth, fifth and sixth assignments of error should be sustained.

The seventh assignment of error is also sustained. The court inadvertently substituted the expense to which the plaintiff was subjected on account of rent paid by him after he left the premises for the rental value of his own property after he had ceased to use it. The amount of the rent which the plaintiff may have paid for other property is not a proper subject of consideration in determining the damage to which he may be entitled. If by reason of the trespass of the defendant his property was rendered uninhabitable, he would be entitled to recover the rental value thereof in addition to the cost of restoration and of removal to which we have before referred.

The judgment is reversed and a venire facias de novo awarded.