Herbert v. Rainey

• Decision Date: 11 July 1894
• Docket Number: 483
• Citation: 162 Pa. 525,29 A. 725
• Parties: Margaret Herbert v. Wm. J. Rainey, Appellant
• Court: Pennsylvania Supreme Court

29 A. 725

162 Pa. 525

Margaret Herbert v. Wm. J. Rainey, Appellant

No. 483

Supreme Court of Pennsylvania

July 11, 1894

Argued May 9, 1894

Appeal, No. 483, Jan. T., 1894, by defendant, from judgment of C.P. Fayette Co., Dec. T., 1892, No. 293, on verdict for plaintiff. Reversed.

Trespass for injuries caused by operation of coke ovens.

At the trial before MESTREZAT, J., it appeared that plaintiff had a life estate in the house in which she lived, and that the value of the unincumbered fee was about one thousand dollars. Defendant built coke ovens on the street fronting her premises and caused her discomfort and inconvenience. There was no claim for physical injury or suffering.

When Lyman S. Strickler, a witness for plaintiff, was on the stand, he was asked:

"Q. State to the court and jury what in your judgment would be the damages to Margaret Herbert. Mr. Lindsey: I object that the witness has not given sufficient data to form an opinion and consequently that the witness has not shown any such knowledge of the site there as would entitle him to give an opinion. Mr. Campbell: He says that he is familiar with the place and had a knowledge of it while the ovens were fired and while they lived there. Mr. Ewing: Saw it once when passing along there? Mr. Campbell: Did you pass there during the year and a half from August, 1891, to November, 1892? A. Frequently. Q. Frequently? A. Yes, sir. Q. Did you see these ovens in operation? A. I remember of seeing them once in operation, but I passed the property several times. Q. During that time? A. Yes, sir. The Court: As to the dates, Mr Campbell. Mr. Campbell: From August, 1891, to November, 1892. Mr. Lindsey: The question then clearly, your Honor, ought to be confined from the period of January, 1892, to November, 1892. We object to that; the witness has not shown sufficient knowledge. Mr. Campbell: Q. Mr. Strickler, what, in your opinion, was the damage to Margaret Herbert and this property? Mr. Lindsey: I will ask you if you saw them in operation from January, 1892, to November, 1892. If you can fix the dates as between these two months; do you say that during that time you saw them in operation only the once? A. Only the once, yes, sir. Q. Did you see them from the public road or train, in passing? A. I have walked along the railroad and also along the public road. I was assessor in that township. Q. You had only seen them once in operation? A. Yes, sir. Q. Well, where were you when you saw them in operation? On the old public road back of the house? A. Yes, sir. Q. Just in passing? A. Yes, sir. Mr. Lindsey: I object. The Court: Objection overruled and exception sealed. Mr. Campbell: Go on and state to the court and jury what, in your judgment, what the amount of damage would be? A. Well, for the nine months I can't say that I would give $5.00 for the property and live there. Q. Answer the question and give the amount? A. Twentyfive hundred dollars." [1]

Daniel D. Sproat testified that the damages would be from $10,000 to $15,000.

Defendant's second point was as follows:

"2. That the measure of damages, if any, would be the difference in the rental value of the property during the period of the continuance of the trespass." Refused. [7]

The court charged in part as follows:

"Now, gentlemen of the jury, you may go a step further, and you may, instead of following the usual and ordinary rule in measuring these damages, give what is known as punitive exemplary damages as spoken of by the counsel in their arguments. If you find that the conduct of the defendant in doing these alleged wrongs was reckless, was willful and with a disregard of the plaintiff's rights in these premises, you may go a step further and give such damages as will be punitive, in other words, will punish the defendant for his conduct." [8]

Verdict and judgment for plaintiff for $850.

Errors assigned were, among others, (1) ruling, quoting bill of exceptions; (7, 8) instructions, quoting them; (9) that the charge of the court was inadequate in not commenting upon the extraordinary estimates of damages.

The judgment is reversed for the reasons now given and a venire facias de novo awarded.

R. H. Lindsey, S. E. Ewing with him, for appellant, cited, on the admission of testimony: Ry. v. Vance, 115 Pa. 325; Watson v. R.R., 37 Pa. 481; R.R. v. Stocker, 128 Pa. 235. On the measure of damages: Traction Co. v. Orbann, 119 Pa. 45.

Edward Campbell, for appellee, filed no paper-book.

Before GREEN, WILLIAMS, McCOLLUM, DEAN and FELL, JJ.

OPINION

MR. JUSTICE WILLIAMS:

The plaintiff has a life estate in a house and lot in Tyrone township, Fayette county, which she occupied in 1891 as a residence. The unincumbered fee cost and is said now to be worth about one thousand dollars. The defendant is the owner of the farm out of which a former owner sold this lot. The land, or some of it, is underlaid with what is known as the Connellsville coal, and the defendant manufactures this coal into coke upon his own premises. In 1891 in extending his plant he built several ovens in front of plaintiff's premises along the line of the railroad covering some part of an alleged street on which the plaintiff's property fronts. This street, as we understand the evidence, is not in use as a public highway but it is claimed that the occupants of this lot have a right of way over it by virtue of a clause in a deed which does not appear in the paper-books. The circuit court of the United States, as the record shows, enjoined the defendant against the...