Shaw v. Susquehanna Boom Co.

• Decision Date: 08 April 1889
• Docket Number: 104
• Citation: 17 A. 426,125 Pa. 324
• Parties: GEORGE C. SHAW v. SUSQUEHANNA BOOM CO
• Court: Pennsylvania Supreme Court

17 A. 426

125 Pa. 324

GEORGE C. SHAW v. SUSQUEHANNA BOOM CO

No. 104

Supreme Court of Pennsylvania

April 8, 1889

Argued March 20, 1889

ERROR TO THE COURT OF COMMON PLEAS OF LYCOMING COUNTY.

No. 104 January Term 1888, Sup. Ct.; court below, No. 44 March Term 1887, C.P.

On December 4, 1886, George C. Shaw filed a petition for the appointment of viewers to assess damages against the Susquehanna Boom Co., under a provision of their charter, for injury done to plaintiff's land and stock by reason of an ice gorge and flood which he alleged was caused by the boom company's dam and piers. The viewers were appointed and reported in due course, and upon appeal from their award an issue was granted, in which Shaw was plaintiff and the boom company defendant. Plaintiff's petition was allowed to stand for a declaration, and defendant pleaded not guilty.

The petition set out, inter alia, the location of plaintiff's farm on the river, and of the defendant's dam and piers. The bill of particulars, contained the following as to the cause of the injury:

"The said injury was caused by an ice-jam, occasioned by the exercise of the powers granted to the said boom company as hereinbefore specified, to wit, by the erection and maintenance of a large number of piers between the borough now city, of Williamsport, and the mouth of Quineshehocque creek, and within fifteen miles above the mouth of the Quineshehocque creek, and by the erection and maintenance of the dam between the mouth of Lycoming creek and the mouth of Loyalsock creek, near or opposite the city of Williamsport and by the dead and slack water caused by said dam; and the said piers and dam, and the dead and slack water caused by said dam and piers held the ice which had been frozen in said dam and slack water, and around said piers, and caused the ice which had broken above and came floating down the river on said 6th day of February, 1884, to stop and gorge, which said gorge extended back and up said river to and above and beyond the lands of the plaintiff, where the property which is hereinbefore specified was located, and overflowed and covered the lands and premises of the plaintiff."

Plaintiffs' house was on the river bank about eight miles above Toner's Island, the head of the boom, but the piers of the boom extended up the river to within half a mile of plaintiff's house where one ran out into the river about thirty feet.

Plaintiff called numerous witnesses who had lived along the river opposite the boom for many years, and who testified to seeing the jam and flood which followed it; that there was an opening of only one hundred feet between the last pier of the boom and the shore of the river; that the ice never went out of a part of the boom until spring; that it was jammed for miles down the river from plaintiff's farm. Certain witnesses who had lived on the bank of the river for fifty years testified that they never saw the ice-jam so that the high water would not carry it out, until after the boom piers were built.

Plaintiff called one Davis who had lived alongside the boom for thirty years, and who also knew the river before the boom was constructed, and offered to ask him the following question:

Q. From your knowledge and experience, and your knowledge of the action of the river, what do you say caused the ice-jam in 1884?

Defendant's counsel object, because the question asks the opinion of the witness, which is not admissible; the plaintiff can only show the facts, from which the jury are to find the facts; the offer is irrelevant, immaterial and incompetent.

By the court: Objections sustained; exception.

Enoch Turley having been called for plaintiff, counsel made the following offer:

"It appearing by the evidence of George S. Banger, that Mahlon Fisher was president of the Susquehanna Boom Company at the time the witness states he was employed by the boom company for the purpose of building the piers west of the Philadelphia & Erie railroad bridge, plaintiff proposes to ask the witness what Fisher, the president of the boom company, said to him upon the subject of...