Mardo v. Valley Smokeless Coal Co.

• Decision Date: 07 January 1924
• Docket Number: 71
• Citation: 123 A. 779,279 Pa. 209
• Parties: Mardo et ux., Appellants, v. Valley Smokeless Coal Co
• Court: Pennsylvania Supreme Court

123 A. 779

279 Pa. 209

Mardo et ux., Appellants, v. Valley Smokeless Coal Co

No. 71

Supreme Court of Pennsylvania

January 7, 1924

Argued October 19, 1923

Appeal, No. 71, Oct. T., 1923, by plaintiff, from judgment of C.P. Cambria Co., March T., 1921, No. 32, for defendant n.o.v., on verdict for plaintiffs, in case of Steve Mardo et ux. v. Valley Smokeless Coal Co. Affirmed.

Trespass for death of plaintiff's son. Before REED, P.J., of O.C specially presiding.

The opinion of the Supreme Court states the facts.

Verdict for plaintiffs for $3,506. Judgment n.o.v., for defendant.

Error assigned was judgment n.o.v., quoting record.

Judgment affirmed.

John M. Freeman, of Watson & Freeman, with him Ray Patton Smith, William H. Burd and Robert Munroe, 3d, for appellants. -- There was ample evidence from which negligence of defendant could be reasonably inferred, and the court therefore erred in granting defendant's motion for judgment non obstante veredicto: Bastian v. Phila., 180 Pa. 227 Derrick v. Electric Co., 268 Pa. 136; Mountain v. Am. W.G. Co., 263 Pa. 181; Wiles v. Emerson-Brantingham Co., 267 Pa. 47; West Chester & P.R.R. Co. v. McElwee, 67 Pa. 311; Grand Trunk Ry. v. Ives, 144 U.S. 408; Penna. R.R. v. Peters, 116 Pa. 206; Murray v. Frick, 277 Pa. 190; Dougherty v. Transit Co., 257 Pa. 118.

In the Sheets' Case, there was no evidence showing any appearance of decay in the limb before the accident happened, and it is therefore not in point in this case: Sheets v. Electric Rys., 237 Pa. 153.

Harold B. Beitler, with him Charles S. Evans, for appellee. -- The happening of the accident in such a case as this raises no presumption of negligence on the part of defendant: Direnzo v. Pittsburgh B. & I. Wks., 265 Pa. 561; King v. Coal Co. 275 Pa. 369; Lanning v. Ry., 229 Pa. 575.

The case in Pennsylvania nearest in facts to the case now under consideration is Sheets v. Electric Ry. Co., 237 Pa. 153.

The rule caveat emptor applies to a tenant who takes the property "for better or for worse": Levin v. Phila., 277 Pa. 560; Westerberg v. R.R., 142 Pa. 471; Smith v. Ry., 92 Pa. 450; Sullenberger v. Traction Co., 33 Pa.Super. 12.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

Plaintiffs seek to recover from defendant for the death of their minor son, aged eleven, killed as the result of one tree falling against another, causing the latter to fall on the boy as he was playing in the yard. The father was in the employ of the defendant, living in one of its houses at Riverside, near Johnstown, Pa. The trees were on defendant's land, the one that struck the boy being in front of the premises leased to plaintiffs. The statement averred the "roots of the tree had become rotten, unstable and in a dangerous condition, all of which was apparent to the defendant." Plaintiffs recovered a verdict. The court below, on motion of defendant, entered judgment n.o.v.; hence this appeal.

The evidence to sustain the charge of negligence, read in a light most advantageous to plaintiffs, resolving all conflicts in their favor, and giving them the benefit of every fact and inference of fact pertaining to the issues involved which may be reasonably deduced therefrom (Mountain v. American W.G. Co., 263 Pa. 181; Wiles v. Emerson-Brantingham Co., 267 Pa. 47, 48), is not sufficient to sustain the charge of negligence. It requires something more than the happening of an accident to fix liability on a defendant. Here the burden was on plaintiffs to show the specific act of negligence, or an obviously dangerous condition or circumstance, to support such finding: Direnzo v. Pittsburgh B. & I. Wks., 265 Pa. 561. There should be evidence the limb or tree was materially decayed, in such condition that it could be seen with the observance of ordinary care, or that the exercise of reasonable diligence would have enabled the owner to discover it. Otherwise there must be notice brought home to him.

Here we have a large tree two feet in diameter and fifty feet high, standing some distance from a smaller tree. The large tree fell against the small one, and the latter on the boy. The condition of the larger tree was described by a witness who passed it daily as having no leaves on the limbs at the top, while the lower branches had leaves on them. Another witness stated the roots on one side looked as though they were dead. The witnesses did not regard the tree as dangerous; by simply looking at it one would not know or anticipate danger was impending. The roots were exposed above ground, but, as the court below says, it is a common sight to see sugar maples with some dead limbs and exposed dead roots. These roots are often to be seen around the trunk, extending a distance of two or three feet, and yet such a tree is not necessarily in a dangerous condition. Moreover, there is not a particle of evidence that it gave way on the side where the dead roots were.

The tree, which had stood for many years, fell from no apparent cause; there was scarcely any breeze at the time. Plaintiffs asked the trial judge to instruct the jury to find that the weight of the tree caused the fall; this would be mere speculation as to cause. It might have been due to the ground underneath, to a shock received at some former time, or some outside agency for which defend...