Laubaugh v. Pennsylvania Railroad

28 Pa. Super. 247 | Pa. Super. Ct. | 1905

Opinion by

Orlady, J.,

This action was brought to recover damages alleged to have been caused by the wrongful acts of the defendant company. The plaintiff was the owner of a lot of land adjoining that of the railway company, and on which she had erected a frame building one and one half stories high, with a concreted cellar, the whole being occupied as a grocery store. In the cellar she had a stock of general groceries, fish in barrels and bales, apples and other fruits, potatoes, canned goods and a number of other articles usually kept for sale in a grocery store.

The defendant’s roadbed was eight or nine feet above the level of the plaintiff’s lot, and in February, 1899, after a heavy fall of snow, the defendant collected snow at various points along the line of its road and shoveled it from cars over the embankment at the rear end of plaintiff’s lot and on adjoining property, to such an extent that the pile of snow was above the level of the defendant’s tracks. A few days later, owing to a sudden change in the weather, a large quantity of water from this mass of melting snow accumulated in the plaintiff’s cellar to the depth of fifteen or eighteen inches. The defendant’s foreman of tracks, on being notified, made an opening into a sewer at the end of plaintiff’s lot, which furnished an outlet for the water draining from the melting snow, and thereby the inundation of the cellar was relieved.

Some of the goods in the cellar were destroyed by direct contact with water, some were injured by dampness, others being soiled, fouled and damaged were rendered unsalable. The defendant contended that the location of the plaintiff’s storeroom was such that a large volume of water ran into the cellar from other sources than that claimed by her, and that the quantity of goods claimed by the plaintiff to have been in the cellar was not correct. We take it that the verdict disposed of these two propositions ; the principal legal question is as to the measure of damages adopted by thé court in the charge to the jury, and the conduct of the plaintiff after the water came into the cellar. The goods were not removed until several days had elapsed, when it was found that they were in the condition above described. The reason given was that the plaintiff had no other place in which to store them, and that the damage was caused by the first contact with the water, so that a removal would not have been of advantage to anyone.

The court held in regard to the measure of damages as follows : “ The damage in this case, if you shall find that damage was sustained, is the value, of the goods which were destroyed and the depreciation in value of the goods which were not destroyed as occasioned by the injury. The true basis is compensation for loss sustained and nothing more.” The goods were subsequently taken out of the cellar and advertised for sale by handbills and notices, and, the evidence clearly shows, were sold for the best price to be secured for that character of goods. The sales were made by the plaintiff and his clerks, and while no record was kept of individual sales, the parties having charge of them were subject to rigid examination at the hands of counsel, and the character of goods, extent of damage and the prices realized were fully developed before the jury.

Flood damaged goods of this character could not have any market value, as they were so exceptional in condition that no fixed or regular price could be ascertained, and there could not, in the nature of things, be any market demand for such property ; and in an action of this kind ‘where the value of the property destroyed is the criterion of the amount of damages to be awarded and the property destroyed has no market value at the place of its destruction, then all pertinent facts and circumstances are admissible in evidence that tend to establish its real and ordinary value at the time of its destruction, such facts as will .furnish the jury, who alone determine the amount, with such relevant data as will enable them reasonably and intelligently to arrive at a fair value; to this end the original cost of the property, the manner in which it had been used, its general condition and quality and percentage of its depreciation since its purchase or erection, from use, damage, decay or otherwise, are all elements of proof to be submitted to the jury to aid them in ascertaining its value : 2 Joyce on Damages, sec. 1037.

The first and second assignments of error, relating to the testimony which Charles Thoma gave on a former trial of the case, are not material in the light of the record. The same ■facts were established by the testimony of other witnesses, and the claim in the former trial was distinctly different under the pleadings, nor do we think the tenth assignment of error has merit in determining the right of the plaintiff to maintain the action. The use plaintiff was asked : “ Are you the trustee in bankruptcy of L. N. Thoma ? ” To which he replied, “ Yes, sir.” The presumption is in favor of the regularity of all proceedings leading up to the appointment of the trustee in bankruptcy, and that as trustee he complied with all the requirements of the law and was qualified to act. Without further search or investigation the plaintiff of record would be entitled to the verdict. The distribution of the fund would yet be under control of the court. The case was tried on its merits, after all the facts were fully developed through the rigid examination of all parties in interest.

The judgment is affirmed.