Herron v. Jones & Laughlin Co., Ltd.

• Citation: 23 Pa.Super. 226
• Decision Date: 22 May 1903
• Docket Number: 88
• Parties: Herron v. Jones & Laughlin Company, Limited, Appellant
• Court: Pennsylvania Superior Court

23 Pa.Super. 226

Herron v. Jones & Laughlin Company, Limited, Appellant

No. 88

Superior Court of Pennsylvania

May 22, 1903

Argued April 15, 1903 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. No. 1, Allegheny Co.-1902, No. 98, on verdict for plaintiff in case of Hugh Herron v. Jones & Laughlin Company, Limited.

Trespass to recover damages to real estate. Before Brown, J.

At the trial it appeared that the property of plaintiff was about 200 feet from defendant's furnace, and that it had been injured by the blasting of ore during the winter months.

Defendant presented these points:

1. There is no evidence in this case of any negligence on the part of the defendant in blasting the ores upon its property. Answer: Refused.

2. There is no sufficient evidence in this case that the injuries complained of were caused by the blasting of ores upon the defendant's property. Answer: Refused.

3. That under all the evidence in this case the verdict of the jury must be for the defendant. Answer: Refused.

The court charged in part as follows:

[The damages, if any, are to be measured by the depreciation in the value of the property as of the date of the injury, with an additional sum, at the discretion of the jury, not exceeding six per cent per annum, as compensation for delay in the payment of the damages.]

[If the property was injured in the manner claimed by the plaintiff, to what extent was it depreciated in value? While the plaintiff alleges it was a total loss, reputable witnesses of many years' experience in the real estate business, familiar with the property and with market values in its vicinity, say that the depreciation does not exceed $ 200 to $ 400. It is for you to measure and settle this conflict of testimony on the question of depreciation in value.]

[If Mr. Herron's property was depreciated in value as the result of the explosions, what does the fair weight of the testimony indicate as the real damage? Was it $ 200, $ 300 or $ 400, as testified to by some of the defendant's witnesses -- Mr. Hornberger and I believe one or two others; or was it a higher figure, in the direction of the plaintiff's claim?]

[Then, if the plaintiff is entitled to recover at all there is an item of rent to be considered in the case. In addition to the depreciation of the real estate, and compensation for delay in payment, if you think the plaintiff's claim was not exorbitant; in addition to that the plaintiff would be entitled to recover for loss of rent, or rather for the expense he was put to in the shape of rent for a short period of time, from about February 1902, when he left this property, until June, when the property was sold. His title to this property ceased in June, so that whatever right he had in it ceased at that time. Therefore, after that time he would have to pay his own rent, and the item of rent in this case would cover the period from February to June, 1902.]

Verdict and judgment for plaintiff for $ 775. Defendant appealed.

Errors assigned were above instructions, quoting them.

Clarence Burleigh, with him John D. McKennan, for appellant. -- We contend that there was no evidence in this case of any negligence upon the part of the defendant in blasting ores upon its property, and no sufficient evidence in this case that the injuries complained of were caused by the blasting of ores upon appellant's property.

The court erred in the rule as to the measure of damages given to the jury in this case: Alexander v. Stewart Bread Co., 21 Pa.Super. 526; Robb v. Carnegie, 145 Pa. 324; Lentz v. Carnegie, 145 Pa. 612; Harvey v. Coal Co., 201 Pa. 63.

W. A. Hudson, of Hudson & Rowley, for appellee. -- Negligence is always a question for the jury, where there is a conflict of testimony, or, for any cause there is a reasonable doubt as to the facts or as to the inference to be drawn from them: Howett v. Philadelphia, Wilmington & Baltimore Railroad Company, 166 Pa. 607; Gates v. Watt, 127 Pa. 20.

The court gave proper instructions in the measure of damages if Hugh Herron was forced, by the blasting of the ore from cars and sheds, to abandon his property: Herbert v. Rainey, 162 Pa. 525; Seely v. Alden, 61 Pa. 302.

Damages for injuries to property vary also according to the nature of the claimant's right. The owner of the freehold may undoubtedly recover for an injury which permanently affects or depreciates his property, while a tenant, or one having only a possessory right, may recover for an injury to his use or employment of his rights: Ripka v. Sergeant, 7 W. & S. 9; Schnable v. Koehler, 28 Pa. 181; Robb v. Mann, 11 Pa. 300; Williams v. Esling, 4 Pa. 486.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

HENDERSON, J.

The plaintiff brought two actions against the defendant company at No. 8 and No. 496, March term, 1902, in the court of common pleas of Allegheny county. In the first the defendant was charged with negligence in the prosecution of its business in that it permitted limestone and iron ore to be blown out of one or more of its furnaces, by means whereof the house and lot of the plaintiff, situated about 200 feet from the furnace, were damaged and made uninhabitable.

In the second case it was charged that the defendant brought large quantities of iron ore into its ore house, situated about 200 feet from the house and lot referred to, and that in the prosecution of its business it caused...