Mulchanock v. Whitehall Cement Manufacturing Company

• Citation: 98 A. 554,253 Pa. 262
• Decision Date: 17 April 1916
• Docket Number: 253
• Parties: Mulchanock, Appellant, v. The Whitehall Cement Manufacturing Company
• Court: Pennsylvania Supreme Court

98 A. 554

Mulchanock, Appellant, v. The Whitehall Cement Manufacturing Company

253 Pa. 262

No. 253

Supreme Court of Pennsylvania

April 17, 1916

Argued February 1, 1916

Appeal, No. 253, Jan. T., 1915, by plaintiff, from final order of C.P. Lehigh Co., April T., 1913, No. 79, refusing to take off compulsory nonsuit, in case of Andrew Mulchanock v The Whitehall Cement Manufacturing Company. Reversed.

Trespass to recover damages for injuries to plaintiff's dwelling. Before GROMAN, P.J.

The opinion of the Supreme Court states the facts.

The trial judge entered a compulsory nonsuit, which the court subsequently refused to take off. Plaintiff appealed.

Error assigned was in refusing to take off the nonsuit.

The assignments of error are sustained, and the judgment is reversed with a procedendo.

Milton C. Henninger, with him William H. Schneller, for appellant.

Thos F. Diefenderfer, for appellee.

Before BROWN, C.J., POTTER, STEWART, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE POTTER:

This is an appeal from the refusal of the court below to take off a judgment of compulsory nonsuit. The plaintiff and defendant were owners of properties which were separated only by a public road. The defendant operated a stone quarry, distant some two hundred and fifty feet from the premises of plaintiff. The blasting operations were so conducted that large pieces of rock were frequently cast upon the property of plaintiff. It appears that, prior to the explosion, the defendant was good enough to notify the plaintiff, or members of his family, of the impending danger, and to suggest that the occupants of the house should retire to a place of safety, in order to escape injury from the blast. In giving this notice, defendant seemed to consider that it had discharged the full measure of its duty to plaintiff. The trial judge held that there could be no recovery of damages unless it was shown that defendant was malicious or negligent in the operation of the quarry, and he further held that in this case the question of negligence was one of law for the court, and, being of the opinion that the testimony did not establish negligence, he refused to take off the judgment of compulsory nonsuit. The court below seems to have overlooked the fact that the evidence showed direct injury to plaintiff's property. It showed that as a result of the blasting operations large pieces of rock were repeatedly cast upon and against the dwelling house...