206 Pa. Super. 505 | Pa. Super. Ct. | 1965
Opinion by
On March 24, 1964, Josephine, Mary and Carmela Mazza filed a complaint in trespass against Berlanti Construction Company, Inc., hereinafter referred to as Berlanti, to recover damages to their premises resulting from blasting. Berlanti did not answer the complaint, but did file interrogatories which were answered by the plaintiffs. Following a two-day trial, at which the late Judge William R. Toal presided, the jury returned a verdict for the plaintiffs in the sum of $6,500.-00. Motions by Berlanti for a new trial and for judgment n.o.v. were dismissed by the court en banc, and judgment was entered on the verdict. This appeal followed.
The Mazza sisters are the owners of and reside in premises at the corner of Thirteenth and Potter Streets in the City of Chester, Delaware County. Their property is improved by a large dwelling house and additions thereto, including a beauty parlor. Berlanti is a corporation engaged in the business of engineering, contracting and construction, with its general office in New York City. Commencing in 1961 and continuing through April 17, 1963, Berlanti was engaged in the installation of a major sewer main on Thirteenth Street, and also in the relocation of railroad tracks of the Baltimore and Ohio Railroad. This work was being performed under contract with the Commonwealth of Pennsylvania pursuant to an overall plan for construction of the Chester Expressway.
Appellant now argues, and this is its first contention, that the trial judge erred in adding the following explanation in connection with his affirmance of Berlanti’s second point
Appellant’s second contention is' that the Mazzas did not “meet their burden of proof of establishing that the damages of which they complained were caused by the defendant’s blasting”. The Mazzas testified that the blasting commenced in 1961. Pasquale Fazio, an assistant construction engineer for the Pennsylvania Department of Highways and a witness for the appellant, testified as to Berlanti’s 1962 blasting operations on Thirteenth Street within an area 140 feet west and 180 feet east of the intersection with Potter Street. Fazio also testified that there was blasting “in the cut where the railroad tracks were relocated” approximately 250 feet below Thirteenth Street, and that some of this blasting was performed by another contractor. Appellant cites Stauffer v. Railway Express Agency, 355 Pa. 24, 47 A. 2d 817, for the proposition
Appellant also argues that the Mazzas failed to adduce expert testimony, citing McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 129 A. 568, and Kosco v. Hachmeister, 396 Pa. 288, 152 A. 2d 673. We do not understand the law to be that this is a necessary requirement. Where conditions which have continued for a long period of time change coincidentally with the occurrence of a new event, which in common experience may have caused the change, there is sufficient evidence of causation present for the case to go to the jury: Bumbarger v. Walker, 193 Pa. Superior Ct. 301, 164 A. 2d 144. Lay witnesses were permitted to testify as to concussion damage in Del Pizzo v. Middle West Construction Co., 146 Pa. Superior Ct. 345, 22 A. 2d 79, and in Federoff v. Harrison Construction Co., supra, 362 Pa. 181, 66 A. 2d 817. See also Dussell v. Kaufman Construction Co., 398 Pa. 369, 157 A. 2d 740.
Appellant’s third and final contention is that the jury’s verdict was contrary to the evidence and to the law. Appellant argues that the jury did not have the right to capriciously disregard Fazio’s testimony, citing Lunzer v. Pittsburgh and Lake Erie R. R., 296 Pa. 393, 145 A. 907, but that case does not control the instant appeal. Appellant also complains that the jury disregarded the testimony of Jack S. Specht, a vibration engineer, to the effect that the Mazza damage was not caused by Berlanti’s blasting, citing Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104, wherein the plaintiff called two expert witnesses whose testimony was diametrically conflicting. This was not the situation in the case at bar. It was the province of the jury to reject Specht’s opinion: Ray v. Philadelphia, 344 Pa. 439, 25 A. 2d 145, in which the Mudano case is distinguished. See also Gaita v. Pamula, 385 Pa. 171, 122 A. 2d 63. The reconciliation of conflicting accounts of an occurrence and the determination of legal liability so far as it is dependent on fact are within the exclusive province of the jury: Majewski v. Lempka, 321 Pa. 369, 183 A. 777.
Judgment affirmed.
“In order to find for tire Plaintiffs, you must find that the Defendant was engaged in an ultra-hazardous activity and that the damage claimed by the Plaintiffs was within the foreseeable orbit of harm of the Defendant’s activities and was caused by such ultra-hazardous activities. By foreseeable orbit of harm, we mean that the Defendant should recognize that the Plaintiffs’ property is likely to be harmed by the unpreventable miscarriage of its activity and that the harm will result thereto from that which makes the activity ultra-hazardous, regardless of the care exercised to prevent it. Otherwise, you must find that the Plaintiffs’ damage was caused by the Defendant’s activity which was negligently carried on in order to find for the Plaintiffs”.
“We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but that there must be evidence upon which logically its conclusion may be based . . . Clearly this does not mean that the jury may not draw inferences based upon all the evidence and the jurors’ own knowledge and experiences, for that is, of course, the very heart of the jury’s function. It means only that the evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by plaintiff, and not that that conclusion must be the only one which logically can be reached”.