Stevenson v. Ebervale Coal Co.

201 Pa. 112 | Pa. | 1902

Opinion by

Mb. Justice Bbown,

The real complaint of the appellants is that the verdict is excessive. The only reason assigned in the application for a new trial in the court below was, that the damages assessed by the jury were too high, and, by the twenty-seventh and last assignment of error, which is not sustained, we are asked to reverse or modify the judgment for the same reason. We are urged not to remit the case for another trial, but, under the power conferred by the Act of May 20, 1891, P. L. 101, to reduce the verdict to such a sum as, in our judgment, under the testimony, will be right and proper. This we are at present unwilling to do, being of one mind that a jury, properly directed by the court as to the measure of damages, after hearing competent testimony, will return a just finding; and, as we are compelled to sustain some of the assignments of error, on a new trial there may be a verdict which will not be regarded as unreasonable.

The tenth point submitted by the defendants was as follows : “ If the jury find the plaintiff is entitled to recover, the true measure of damages for permanent injury in this case is the cost of removing the culm or coal dirt, unless the expense of removal of the coal dirt exceeds the value of the entire property, in which case the value of the property is the limit of the measure of damages, and in no event can there be a recovery in excess of the value of the entire property for a permanent injury.” This point was properly affirmed: Lentz v. Carnegie Bros. & Co., 145 Pa. 612; Eshleman v. Martic Township, 152 Pa. 68 ; Elder v. Lykens Valley Coal Co., 157 Pa. 490; but testimony was admitted by the court from which the jury could have arrived at another measure of damages. Sons of the plaintiff were allowed to testify to the depreciation of the value of their father’s property from 1890 until the day of the trial, due to the pollution of his stream by the defendants, and they fixed the annual depreciation at $10,000, or a total of $100,000 for ten years. The question of depreciation of the value of the property was not properly before the jury; but, even if it had been, the opinions of these witnesses were reckless guesses, based upon no facts, and ought not to have been allowed to go to the jury, who may have been improperly and unduly influenced by them. These witnesses should have been examined on the question of damages from the standpoint of .the tenth point submitted by the defendants, and the first and second assignments of error are sustained.

By agreement, the jury were instructed that they could return a verdict against one or all of the defendants as joint tort feasors, and the offer of the testimony of John Markle, taken in the case of John Geddig v. The Union Improvement Company, and the Jeddo Tunnel Company, Limited, was simply an offer to prove conclusively certain admissions that he had made. The testimony was admitted to affect only the witness who, at the time he testified, was president and chief engineer of the Jeddo Tunnel Company, Limited, which company is one of the defendants in this suit. The declarations of a party to the record, if against his interest, are always admissible, and, when the offer is to prove what he testified to in certain proceedings at law, it is an offer to prove conclusively what his admission was. Ordinarily, admissions as matters of proof are uncertain and generally liable to be contradicted; but when uttered words are taken down as testimony in a cause, there can be no mistake as to what the witness said, or as to what the admissions were. Markle was not a witness for the plaintiff, whom he ought to have subpoenaed, or whose testimony could be read only after proof to the court that the witness could not be produced; as stated, his deposition was offered and received as an admission of one of the defendants affecting only himself, and the cases brought to our notice as to the right to read the deposition of a witness do not apply. Markle’s deposition was properly received, and the third and fourth assignments are not sustained.

The offers which are the subjects of the fifth, sixth, seventh, eighth, ninth, sixteenth, seventeenth and eighteenth assignments were made for the purpose of showing that there were other causes than the alleged injuries committed by the defendants that contributed to the impairment of the value of plaintiff’s property and all should have been allowed. These assignments are sustained.

There was no error in rejecting the offer to prove that the Nescopeck Water Supply Company would agree to supply fresh water to the plaintiff at the rate of #15.00 per annum, in an amount sufficient to wash the wool in his factory. He had the right to use the water of Nescopeck creek as it naturally flowed over his own property, and private parties polluting it cannot urge, in mitigation of the damages they cause, that they offered to give him a substitute for it. The right to arbitrarily decline the use of any other water proffered by the defendants was as absolute as the right to use his own unpolluted water, and the tenth assignment is overruled.

As the measure of damages in this case is the expense of removing the coal dirt, unless the cost of such removal shall exceed the value of the entire property, the offers which are the subject of the eleventh, thirteenth, fourteenth and fifteenth assignments should have been allowed, for the real value of the property becomes important. The witnesses called were clearly competent to testify what it was, and the exclusion of their testimony was error. These assignments are sustained.

The testimony of D. J. McCarthy, that he had a conversation with the plaintiff, in which the latter stated that it was difficult to do business because of the scarcity of wool; that the farmers had practically quit raising it; that it was extremely difficult to get skilled labor, being remote from any town; that the machinery was old, and that he was old himself, ought not to have been stricken out, as it was most important upon the question, not only of the real value of the property, but as to whether its impaired value was due entirely to the injuries alleged to have been done by the defendants. The nineteenth assignment is sustained.

The twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth and twenty-sixth assignments are overruled. They all challenge the correctness of the charge of the trial judge and his answers to points submitted by the defendants, which are entirely free from error.

It is not needful that we say anything more. After the admission of the defendants of their liability to the plaintiff, the only question is the amount of damages that ought to be recovered. No errors were committed on the trial except those to which we have called attention. They will be avoided on a second trial, and the jury will, in all probability, render a finding to which there will be no exception. Judgment reversed and a venire facias do novo awarded.