Welsh v. Kerr Coal Co.

• Decision Date: 02 January 1912
• Docket Number: 41
• Citation: 82 A. 495,233 Pa. 341
• Parties: Welsh v. Kerr Coal Company, Appellant
• Court: Pennsylvania Supreme Court

82 A. 495

Welsh v. Kerr Coal Company, Appellant

233 Pa. 341

No. 41

Supreme Court of Pennsylvania

January 2, 1912

Argued October 4, 1911

Appeal, No. 41, Oct. T., 1911, by defendant, from judgment of C.P. Armstrong Co., Sept. Term, 1909, No. 115, on verdict for plaintiff in case of Frank Welsh v. Kerr Coal Company. Affirmed.

Trespass to recover damages for injuries to a building and land. Before PATTON, P.J.

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

Verdict and judgment for plaintiff for $2,000. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

The judgment is affirmed.

R. A McCullough and R. L. Ralston, for appellant.

C. E Harrington, with him Harry C. Golden, for appellee.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE STEWART:

In consequence of a slide, occurring on the hill on which plaintiff owned an improved lot of ground with dwelling erected thereon, plaintiff's building was wrecked and his property otherwise seriously damaged. He brought the present action against the defendant company complaining that the slide was occasioned by the negligence of the defendant in opening and operating its coal mine on the hillside some twenty-eight feet above the level of his property. The defendant had utilized the dirt and culm which it had taken from the entry of the mine in constructing a tramway along the hillside from the mouth of the mine, some 240 feet north of plaintiff's land, to its tipple, 250 feet deep south of said lot, upon which tracks were laid to run cars upon between mine and tipple. It further appeared that in opening the mine, water in considerable quantity which prior thereto had subterranean flow, was diverted in its course and escaped through the entry to the mine above the tramway. The averment was that the defendant company had provided no proper drainage for this water, and had negligently allowed it to percolate through the soil or loam upon the hillside, so that the soil of plaintiff's lot had become loosened and insufficient to support the weight and pressure of the tramway which defendant had constructed along the hillside and that the slide which wrecked the plaintiff's house was the immediate result of the defendant's negligence in this regard. The case was carefully tried, and was submitted to the jury in a full and impartial charge, with the result that recovery was allowed the plaintiff. The burden of the appeal is that the court erred in not directing a verdict for the defendant, on the ground that the evidence was not sufficient to warrant the inference that the slide that did the injury resulted from either or both of the acts complained of, and that no negligence was shown. The first proposition takes no account whatever of the testimony of the several witnesses called by plaintiff, who, speaking from long acquaintance with the hillside, say that no such thing as a slide ever occurred there until after defendant's coal operation was entered upon in 1906; and, what is far more important,...