251 Pa. 253 | Pa. | 1916
Opinion by
This was an action in trespass instituted in July, 1912, by Hiram Ribblett and Emma Ribblett, his wife, to recover damages alleged to have been suffered by them as the result of the defendant’s maintenance, in close proximity to the farm upon which they resided, of a dump, consisting of a large pile' of burning refuse, which emitted “quantities of fumes, sulphurous and other gases that are deadly to and destructive of vegetable life.” The plaintiffs averred in their statement of claim that the farm in question was composed of 41 acres of land belonging to Hiram Ribblett and 31 acres belonging to Emma Ribblett; that these two tracts constituted one property, and had been occupied and enjoyed by them as such for many years; that the portion of the land not suitable for farming purposes was used in the pasturing of milch cows; that, owing to gases emitted from the defendant’s dump, “the plaintiff’s business of farming, gardening, fruit raising, marketing and dairying had been entirely destroyed”; that the productive qualities of the land had been injured; that the once
During the course of the trial, it developed that the two pieces of land alleged to have been injured, were owned in severalty by the respective plaintiffs; whereupon the court permitted Hiram Ribblett to amend the statement by striking out the name of Emma Ribblett and limiting the damages claimed to the 41 acres owned by him. This amendment was objected to upon several grounds; but the defendant did not plead surprise or ask for a continuance of the trial. While it might have been better practice to have required the plaintiff to file a formal written amendment of his statement of claim, yet we cannot agree with the appellant that the amendment granted at bar practically constituted the cause of Hiram Ribblett a new action, or that it made the record too vague and indefinite to sustain a judgment; hence, the assignments of error which pertain thereto are overruled. But, after reading all the testimony adduced by the plaintiff, without considering the answering testimony of the defendant, we are impelled to the conclusion that the verdict of the jury, and the judgment based thereon, cannot be sustained.
The evidence depended upon by the plaintiff was not only vague and indefinite, but entirely insufficient, first, to show that the alleged tortious acts of the defendant had the effect attributed to them, and, next, if the gases from the dump affected the plaintiff in the manner alleged, then the evidence adduced was either incompetent or insufficient to prove the monetary damages suffered. At the time of trial, in September, 1914, Hiram Ribblett was 84 years of age and his wife was 79, and it appeared that the trees on their farm never had been
The witnesses all agreed that the fumes from the defendant’s dump caused considerable annoyance for a number of years to every one in the neighborhood; but there was no testimony produced to show in detail the effect of these gases upon the health of the plaintiff, so as to enable a jury intelligently to estimate the compensation he was entitled to recover on that score. Neither was there any evidence of the amount expended for medical attendance, etc., although the doctor was called as a witness. In point of fact, the evidence depended upon to liquidate the plaintiff’s damages was, if anything, even weaker than that relied upon to make out his cause of action, and this inadequacy was manifest in every branch of the case.
While we have held that the ordinary rule for the ascertainment of damages where land is appropriated under the right of eminent domain, did not control in cases somewhat like the one at bar, yet, we have on numerous occasions decided that, when standing timber is destroyed, the damages therefor are to be measured by determining the difference in the value of the land, upon which the trees grew, before and after the injury complained of (Mahaffey v. New York Central & Hudson River R. R. Co., 229 Pa. 285-287; Savings & Trust Co. of Indiana v. Penna. R. R. Co., 229 Pa. 484-489; Bullock v. Balto. & Ohio R. R. Co., 235 Pa. 417). There may be exceptional instances, when the evidence shows the trees in question to have had a selling value separate and apart from the land (for example, trees growing on a nursery farm), where a different rule would apply; but, under the facts at bar, there can be no doubt that the proper way to determine the pecuniary damage suffered by the destruction of the plaintiff’s trees was through the application of the ordinary rule just referred to. The only testimony produced, however, relative to the damage thus suffered was the expression of opinion by two
In Robb v. Carnegie Bros. & Co., 145 Pa. 324, 341, et seq. (also see Irwin v. Nolde, 164 Pa. 205, 208), we state a clear rule as to how an alleged loss on crops is to be proved in a case of this kind; but the rule there laid down was not followed in the present instance. While some of the witnesses produced by the plaintiff attempted to show the failure of crops in certain years, they did not say what was planted during those years, nor did they shed any sufficient light upon the general subject to enable a jury to attribute the falling off of the crops to the causes alleged against defendant, or properly to value in dollars and cents the depreciation alleged to be due to the fault of defendant.
No witness definitely stated that the gases from the defendant’s dump made it necessary for the plaintiff to abandon his dairy business, although such an intimation may be contained in the testimony. However that fact may be, the damage suffered was not proved. Mrs. Ribblett said they simply kept a milk book, and had no regular books of account. Another witness for plaintiff testified that, as near as he could state, the net profits of the dairy “run about $100.00 a month”; but, on cross-examination, 'he admitted that, in figuring this $100.00 a month, he did not take into consideration certain expenses; and finally, the witness said he was in error
The thirteenth assignment, which complains of the refusal to enter judgment non obstante veredicto for the defendant, must be sustained; therefore, it is unnecessary specifically to pass upon the other assignments.
The judgment is reversed and is entered for the defendant.