Hershey v. H. S. Kerbaugh, Inc.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtPOTTER, J.
Citation242 Pa. 227,88 A. 1009
Decision Date10 July 1913
PartiesHERSHEY et al. v. H. S. KERBAUGH, Inc., et al.
88 A. 1009
242 Pa. 227

HERSHEY et al.
v.
H. S. KERBAUGH, Inc., et al.

Supreme Court of Pennsylvania.

July 10, 1913.


88 A. 1010

Appeal from Court of Common Pleas, Lancaster County.

Action by Andrew H. Hershey and others against H. S. Kerbaugh, Incorporated, and another. From judgment for plaintiffs, the defendant named appeals. Reversed.

The action was discontinued as against the Pennsylvania Railroad Company before the trial. The facts appear by the opinion of the Supreme Court. Verdict for plaintiff for $7,916, and judgment thereon.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and MOSCHZISKER, JJ.

W. U. Hensel, Frank S. Groff, and Philip T. Meredith, all of Lancaster, for appellant.

John E. Malone, Amos E. Burkholder, John M. Groff, and Appel & Appel, all of Lancaster, for appellees.

POTTER, J. In the years 1904 and 1905 Andrew H. Hershey, Ezra M. Good, and Christian H. Holt were the owners as tenants in common of several small islands in the Susquehanna river, lying about 1,600 feet from the east shore, in Conestoga township, Lancaster county, and containing about 136 acres of land, of which about 80 acres were subject to cultivation. There were also upon the islands deposits of molding sand, which had commercial value. As occasion for it arose, the produce and sand were, according to the testimony, taken off by means of rafts and flat boats, through a channel running between the islands and the east bank of the river, where a public road was reached. In the latter part of the year 1904 and in 1905 the defendant, which is a corporation engaged in the contracting business, was constructing a railroad for the Pennsylvania Railroad Company along the east bank of the Susquehanna river opposite these islands. The evidence tended to show that, in the process of grading and blasting the high rocky bluff, considerable amounts of rock were thrown into the channel, and into the public road, with the effect of blocking the channel, and preventing its use as a means of passage to and from the islands. After bringing this suit to recover damages, all the interests of the original plaintiffs in the action were assigned and transferred to J. W. Fehl, and the suit was marked to his use upon the record. The trial resulted in a verdict for the plaintiffs in the sum of $7,916. Judgment was entered on the verdict, and defendant has appealed.

The first assignment of error is to the admission in evidence of plaintiffs' offer to prove by the witness Good, one of the plaintiffs, that the channel of the river was filled up by rock, caused by the blasting of defendant, to such an extent that it could no longer be operated, and also that the defendant "placed a pier or abutment of a bridge in the public road and likewise [on] a portion of the right of way over the public road, and absolutely destroyed the same." Upon objection being made, the trial judge restricted the testimony to showing interference with the channel. Plaintiffs' counsel then put this question to the witness: "Was the public road at which you landed, then, practically wiped out by the construction of this company?" By the word "construction" was meant apparently the pier or abutment of the bridge mentioned in the former offer. The bridge was, however, erected by the railroad company under its power of eminent domain. The trial court admitted the question, with the qualification, "if it was off the right of way." We find neither allegation nor proof that the pier or abutment was off the right of way. Plaintiffs contended that the defendant had blocked up the roadway for some distance between the bridge and the river, but the evidence as to this is vague. It was not shown what the cost of removing this rock so as to clear a passageway would have been, nor was there anything to show that the railroad had not or would not perform its statutory duty in constructing another road. In the absence of such testimony, we think the court erred in overruling the objection to this last question.

The second assignment alleges error in refusing binding instructions for defendant The third...

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15 practice notes
  • Toy v. Atl. Gulf & Pac. Co., No. 7.
    • United States
    • Court of Appeals of Maryland
    • February 22, 1939
    ...532, 533, 14 L.R.A.,N.S, 1083; Home for Aged Women v. Com, 202 Mass. 422, 89 N.E. 124, 126, 24 L.R.A.,N.S, 79; Hershey v. H. S. Kerbaugh, 242 Pa. 227, 88 A. 1009, 1011; Rose v. Miles, 4 M. & S. 101, 105 Eng. Reprint 773; Ratte v. Booth, 11 Ont. 491, aff'd. 15 App.Cas. The action brought is ......
  • Snyder v. Bassler Limestone Co., 272-1916
    • United States
    • Superior Court of Pennsylvania
    • March 13, 1917
    ...of Reading, 3 Pa.Super. 359; Harvey v. Susquehanna Coal Co., 201 Pa. 63; Cairns v. Chester City, 34 Pa.Super. 51; Hershey v. Kerbaugh, 242 Pa. 227. Jefferson Snyder, with him H. A. Honker, for appellee, cited as to prematurity of action: Bellas v. Fagely, 19 Pa. 273; Collins v. Smith, 78 Pa......
  • Titus v. Poland Coal Co., 179
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 3, 1923
    ...expense of restoring the soil and removing the refuse, etc., not to exceed the value of the land. This follows Hershey v. H. S. Kerbaugh, 242 Pa. 227; Stevenson v. Coal Co., 201 Pa. 112; same case, 203 Pa. 316; Eshleman v. Martic Township, 152 Pa. 68; Lentz v. Carnegie, 145 Pa. 612; Wellive......
  • Forster v. Rogers Bros., 196
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 2, 1915
    ...Hazard Powder Co. v. Volger, 58 Fed. Repr. 152. The plaintiff's evidence disclosed a public nuisance per se: Hershey v. Kerbaugh, 242 Pa. 227; Wier's App., 74 Pa. 230; Evans v. Reading Chemical Fertilizing Co., 160 Pa. 209; Gavigan v. Atlantic Refining Co., 186 Pa. 604; Myers v. Malcomb, 6 ......
  • Request a trial to view additional results
15 cases
  • Toy v. Atl. Gulf & Pac. Co., No. 7.
    • United States
    • Court of Appeals of Maryland
    • February 22, 1939
    ...532, 533, 14 L.R.A.,N.S, 1083; Home for Aged Women v. Com, 202 Mass. 422, 89 N.E. 124, 126, 24 L.R.A.,N.S, 79; Hershey v. H. S. Kerbaugh, 242 Pa. 227, 88 A. 1009, 1011; Rose v. Miles, 4 M. & S. 101, 105 Eng. Reprint 773; Ratte v. Booth, 11 Ont. 491, aff'd. 15 App.Cas. The action brought is ......
  • Snyder v. Bassler Limestone Co., 272-1916
    • United States
    • Superior Court of Pennsylvania
    • March 13, 1917
    ...of Reading, 3 Pa.Super. 359; Harvey v. Susquehanna Coal Co., 201 Pa. 63; Cairns v. Chester City, 34 Pa.Super. 51; Hershey v. Kerbaugh, 242 Pa. 227. Jefferson Snyder, with him H. A. Honker, for appellee, cited as to prematurity of action: Bellas v. Fagely, 19 Pa. 273; Collins v. Smith, 78 Pa......
  • Titus v. Poland Coal Co., 179
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 3, 1923
    ...expense of restoring the soil and removing the refuse, etc., not to exceed the value of the land. This follows Hershey v. H. S. Kerbaugh, 242 Pa. 227; Stevenson v. Coal Co., 201 Pa. 112; same case, 203 Pa. 316; Eshleman v. Martic Township, 152 Pa. 68; Lentz v. Carnegie, 145 Pa. 612; Wellive......
  • Forster v. Rogers Bros., 196
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 2, 1915
    ...Hazard Powder Co. v. Volger, 58 Fed. Repr. 152. The plaintiff's evidence disclosed a public nuisance per se: Hershey v. Kerbaugh, 242 Pa. 227; Wier's App., 74 Pa. 230; Evans v. Reading Chemical Fertilizing Co., 160 Pa. 209; Gavigan v. Atlantic Refining Co., 186 Pa. 604; Myers v. Malcomb, 6 ......
  • Request a trial to view additional results

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