Pierce v. Lehigh Valley Coal Co. , 232 Pa. 165 ( 1911 )

Opinion by

Mr. Justice Mestrezat,

The defendant alleges the court erred in refusing to instruct the jury that there was no evidence from which they could apportion the defendant’s culm to the whole amount deposited on the plaintiff’s land, and, therefore, the verdict should be for nominal damages. There is no assignment alleging error of law in the trial of the case. After the first trial in the common pleas which resulted in a verdict for nominal damages under the instructions of the court, the defendant appealed to the Superior Court where it was held that the plaintiff was entitled to compensatory damages and that there was sufficient evidence to submit to the jury to determine whether and to what extent the culm deposited by the defendant in the stream damaged the plaintiff’s land. On the next trial there was a verdict and judgment for the plaintiff and from that judgment this appeal was taken. We do not agree with the learned counsel for the appellant that there was any substantial differencé in the evidence submitted on the two trials. Both parties possibly strengthened their position by additional evidence, but after a careful review of the testimony we are satisfied that the ease was for the jury and that the evidence warranted the verdict which was rendered in the second trial. Of course the evidence did not show with mathematical certainty the exact amount of culm from the defendant’s collieries deposited on the plaintiff’s land, that could not be expected, but it was sufficiently certain to justify the jury in finding the proportion of culm which they did find came from the defendant’s collieries. In determining the accuracy of the verdict as to defendant’s proportion of the culm on the plaintiff’s land, it must not be overlooked that the jury at the request of the defendant spent three days in examining the premises with the assistance of two “showers” appointed by the court who were intimately acquainted with the places from which culm was produced along the Susquehanna river and its tributaries. This aided the jury greatly in passing on the vital question in the case. Under the evidence submitted, the jury would have been justified in finding that a greater proportion of the culm than forty per cent came from the defendant’s collieries.

We are at a loss to see why the learned counsel for the appellant should complain of the court’s ruling sustaining the objection to the defendant’s offer to show on cross examination by plaintiff’s witnesses that there was culm in the river other than the defendant’s, when no exception was taken on the trial to such ruling and it is not assigned for error on this appeal. The learned counsel well knows that if he desired to have the alleged error corrected he should have assigned the ruling of the court for error. It is idle to complain of the action of thé court as is done in the printed brief and attempt to use it as an argument to sustain the allegation that the court erred in not directing a verdict for nominal damages. When the plaintiff rested on the trial of the cause, if the defendant company thought he had failed to show its proportion of culm deposited on the land it should have declined to offer any testimony and asked for binding instructions. It was sufficient for the plaintiff- in the first instance to introduce evidence warranting the jury in finding that culm from the defendant’s collieries was deposited on his land and caused the injury complained of. That is what was done. The defendant company did not ask for binding instructions at the conclusion of the plaintiff’s testimony but introduced its own testimony to meet the plaintiff’s case. The defendant cannot now complain that the plaintiff’s case was in part made out by its own testimony. The learned court below instructed the jury that the burden was upon the plaintiff to show that his injuries resulted from the deposit of the defendant’s culm on his premises, and that “if you believe that the culm on the plaintiff’s land came partly from defendant’s operations and partly from those of other .people, what was the defendant’s share of it, its proportion of it? What was the defendant’s proportion of the injury which was done by the washing of its loose culm down upon the plaintiff’s land? Before you can find compensatory damages against the defendant it is necessary for you to determine how much of that damage the defendant was responsible for. ” There was ample evidence to support the jury’s finding as to the proportion of the defendant’s culm deposited on the plaintiff’s land, and the judgment is affirmed.