Harvey v. Susquehanna Coal Co.

• Decision Date: 06 January 1902
• Docket Number: 65
• Parties: Harvey v. Susquehanna Coal Company, Appellant
• Court: Pennsylvania Supreme Court

50 A. 770

201 Pa. 63

Harvey v. Susquehanna Coal Company, Appellant

No. 65

Supreme Court of Pennsylvania

January 6, 1902

Argued April 18, 1901

Appeal, No. 65, Jan. T., 1901, by defendant, from judgment of C.P. Luzerne Co., Dec. T., 1896, No. 106, on verdict for plaintiff in case of W. J. Harvey and H. H. Harvey v. The Susquehanna Coal Company. Reversed.

Trespass for injuries to real estate caused by the alleged negligent escape of coal dust from a breaker. Before HALSEY, J.

At the trial it appeared that the defendant was a coal company, and that one of its breakers was located in the outskirts of the borough of Nanticoke. Plaintiffs owned a number of tenement houses in the immediate vicinity of the breaker, and they claimed that these houses were injured by the alleged negligent escape of coal dust from the breaker.

W. F Dodge, a mining engineer, was called on behalf of the plaintiff and testified at length as to the condition of the breaker. At the conclusion of his testimony defendant's counsel made the following request:

We ask to have all this testimony stricken out.

The Court: That which he does not know of his own knowledge, of course, is incompetent.

Defendant's We ask that everything he testifies to with reference to these screens and ducts be stricken out.

The Court: As to the annex?

Defendant's Yes, sir; and the size of the air ducts. He testified to the cubic feet.

Plaintiffs' "Did you see the ducts themselves? A. Yes, sir."

Plaintiffs' "Is the measurement you have given correct? A. I believe it is correct."

The Court: The screens in the annex he says he never saw. As to the testimony with reference to the screens in the annex we will sustain the motion.

Defendant's We move further to strike out all the testimony of the witness that pertains to the size of the air ducts in the breaker and the other measurements of the main air ducts, on the ground that he now testifies he did not make these measurements himself, but he got his information from some other person who did measure them.

The Court: The motion is denied, because the witness says he believes the measurements are correct, having seen the ducts himself. Exception noted for the defendant, bill sealed. [1]

The court charged in part as follows:

[Could the defendant, by any other device than the one that it has in use there, have prevented the injury to plaintiffs' property?]

[The plaintiffs allege that their said property has been permanently injured. Does the testimony satisfy you that the property has been permanently injured? If it has been permanently injured, then the measure of damages would be a sum that would be sufficient when added to the property as depreciated by the injury to make up its full value. If however, you do not find it to have been permanently injured and the injury could be remedied by the removal of the deposit of dirt upon the property, then the measure of damages would be the plaintiffs' loss, causing a difference in the rental value of their land by the deposit of dirt upon it, unless the dirt could be removed and the property restored to its original condition for a less sum. These, gentlemen of the jury, are the two items of damages, and the two rules governing the estimate on your part of the damages as alleged to have been done these plaintiffs.]

Verdict and judgment for plaintiff for $2,100. Defendant appealed.

Errors assigned, among others, were (1) ruling on evidence, quoting the bill of exceptions; (10, 11) above instructions, quoting them.

COUNSEL:

F. W. Wheaton, with him A. L. Williams and H. W. Palmer, for appellant. -- The injury was damnum absque injuria: Pennsylvania R.R. Co. v. Lippincott, 116 Pa. 472; Hauck v. Tidewater Pipe Line Co., 153 Pa. 375.

The question is not whether another device would have prevented the injury to plaintiffs' property, but whether the device actually used by defendant was that in general use as approved by experienced persons: Frankford, etc., Turnpike Co., v. Phila., etc., R.R. Co., 54 Pa. 345; Robb v. Carnegie, 145 Pa. 342; Lentz v. Carnegie Bros. & Co., 145 Pa. 612; Elder v. Lykens Valley Coal Co., 157 Pa. 490; Eshleman v. Martic Twp., 152 Pa. 68; McGettigan v. Potts, 149 Pa. 162; Keiser v. Mahanoy City Gas Co., 143 Pa. 290.

John T. Lenahan, with him Edward A. Lynch, for appellee. -- The injuries resulting to appellee's property, while caused in the pursuit of a lawful calling, or business, was shown to have been carried on, so far as the failure to control coal dust was involved, in an unlawful manner by appellant's negligence. Upon the measure of damages, counsel cited: Herbert v. Rainey, 162 Pa. 529; Gavigan v. Refining Co., 186 Pa. 605.

Before McCOLLUM, C.J., MITCHELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE BROWN:

The contention of the appellant is that the injury of which the appellees complain is damnum absque injuria, and Pennsylvania Coal Company v. Sanderson, 113 Pa. 126 and Pennsylvania Railroad Company v. Lippincott, 116 Pa. 472, are relied upon for its immunity from liability. In the former case the injury to the plaintiff resulted from the defendants' natural and lawful use of the land itself. They imposed nothing upon the plaintiff that she was not bound to bear as a servient owner, and the following words of the late Justice CLARK sufficiently distinguish it from the present case: "It will be observed that the defendants have done nothing to change the character of the water, or to diminish its purity, save what results from the natural use and enjoyment of their own property. They have brought nothing on to the land artificially. The water as it is poured into Meadow Brook, is the water which the mine naturally discharges; its impurity arises from natural, not artificial causes. The mine cannot, of course, be operated elsewhere than where the coal is naturally found, and the discharge is a necessary incident to the mining of it." This same case was held to be "not at all in point" in Hindson v. Markle, 171 Pa. 138, where it was decided that the owner of coal mines may deposit refuse and culm upon his own land, and if the same are carried away by extraordinary floods into a stream which runs through the land of a lower owner, spreading thence over such lower land, the owner of the coal land is not responsible in damages to the lower owner for the injury thus sustained; but, if the refuse is placed on his own land, in a position where it is washed into the stream by ordinary storms, or if he deposits his refuse and culm directly in the stream, and damage thereby results to the lower owner the mine owner or operator is liable for the damage and injury thus occasioned to the lower owner. Referring to the Sanderson case and its inapplicability, the late Chief Justice GREEN said: "That was the mere flowage of natural water which was discharged by natural and irresistible forces, necessarily developed in the act of mining prosecuted in a perfectly lawful manner. While the mine water thus discharged polluted the water of the stream in which it necessarily flowed, it caused no deposit of any foreign substance on the land of the plaintiff and did not deprive her of its use." In Pennsylvania Railroad Company v. Lippincott, supra, the other case upon which the appellant seems to rely, where...