Laubaugh v. Pennsylvania R. Co.

• Decision Date: 13 July 1905
• Docket Number: 64-1905
• Citation: 28 Pa.Super. 247
• Parties: Laubaugh v. Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Superior Court

28 Pa.Super. 247

Laubaugh v. Pennsylvania Railroad Company, Appellant

No. 64-1905

Superior Court of Pennsylvania

July 13, 1905

Argued January 12, 1905 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Luzerne Co.-1899, No 390, on verdict for plaintiff in case of John I. Laubaugh Trustee, v. Pennsylvania Railroad Company.

Trespass to recover damages for destruction of plaintiff's goods. Before Wheaton, J.

The facts are stated in the opinion of the Superior Court.

Defendant presented these points:

4. It is admitted on the part of the plaintiff that she kept no account of the proceeds derived from the sale of the goods alleged to have been injured by the water, or the prices charged for the same, so as to approximately fix and determine the extent of the depreciation in value of said goods, and the plaintiff's husband, who had charge of the business, further admits in his testimony that his estimate of the amount of the plaintiff's loss is based in part upon the assumption or supposition that the clerks in her employ sold said goods at the prices which he specified in his testimony, affords no reliable data to enable the jury to ascertain and determine the amount alleged to have been suffered by the plaintiff, and should be disregarded by the jury. Answer: I decline to charge as requested on that point.

6. The burden of proof is upon the plaintiff to show affirmatively that she suffered damages from the defendant's negligence or tortious act, but she has not offered any evidence of such a definite and certain character as to enable the jury to ascertain the amount of actual damages which she alleges she sustained by reason of the flooding of her premises, and the jurors are not at liberty to guess at it or estimate it by any process of conjecture or surmise, when the nature of the issue, as shown by the facts and circumstances of this case is susceptible of clear and definite proof. Answer: I decline to charge as requested on that point in its whole length and breadth. There are certain parts of it, if separated from the rest, I would affirm -- that is to say, jurors are not to guess, of course -- but taking the point as a whole I decline to affirm it.

7. [The measure of damages in a case such as this would be the difference between the market value of the stock in its alleged state and what would have been its market value if sound, and there is no legal, definite and certain evidence in the case to establish this question, although the case is susceptible of such proof.] Answer: I decline to affirm that point as presented, although the statement of the law as to the measure of damages is entirely correct.

5. It is admitted by the plaintiff that the proceeds of the sale of the alleged damaged goods were mingled with those derived from the sale of goods unaffected by the water in such a way as to preclude any opportunity or means to determine how much was realized from the one as distinguished from the other. Answer: I leave it to you to say whether that is so or not. There is not any principle of law involved in it and I am not asked to charge upon any question of law. It is a statement of fact and the facts are all for your determination.

8. If the jury believe that the manager, Thoma, told the truth on the former trial of this case two years ago, namely, that he did not know to whom the damaged goods were sold, nor in what quantities, nor for what prices, and had no way of giving said data, then this of itself is sufficient to discredit his testimony on the present trial relating to the same matters and justify the jury in rejecting his evidence altogether as unworthy of credence or belief. Answer: I decline to affirm that point. It is proper, however, to say to you in this connection that in so far as it appears in this trial that Mr. Thoma had been inconsistent as to his testimony here with what he testified to at the former trial that would be a matter for you to take into account as testing his credibility and ascertaining whether he has told the truth or whether he has not. But it is for you also to say by comparison of the testimony as offered whether it has been inconsistent or the contrary. The facts are for you. My recollection is that he testified on the former trial as upon this trial that he did not know the individuals to whom the damaged goods were sold, nor did he know specifically in what quantities. They were sold generally, he testified, in such quantities as people who came in wanted. He kept no account or book of sales that is conceded. It was conceded at the former trial and is at this trial the only book he had was an invoice book which he says has gone now into the hands of a receiver or somebody else. A bank book but no sales books. Nothing but a cash book. He explains to you the reason why he had no such books was because they did a cash business and therefore there was no necessity for other books than a cash book. It is for you to say now whether that is an explanation. It is for you also to say whether his testimony in this trial as to the amount, the prices for which he sold these things is inconsistent with his former statement that the goods were depreciated in the cellar fifty per cent of their cost price. There is no evidence in this case that you are trying what the cost price of the goods was. The evidence in this case has been the market price and the selling price. The evidence in the other case was fifty per cent of the cost price.

The court charged in part as follows:

[The damage in this case, if you shall find...