Eardley v. Keeling & Ridge , 10 Pa. Super. 339 ( 1899 )

Opinion by

Beeber, J.,

This was an action of trespass to recover damages for injuries caused to plaintiff’s house by alleged negligence of the defendants in the manner of constructing a sewer in front of plaintiff’s premises. It appeared that the defendants had made a contract with the city of Pittsburg to construct a sewer along Ethel street upon which plaintiff’s house fronted. The plans, according to which the sewer was to be built, required in some places excavations as deep as nineteen feet. At some places in this trench rocks or boulders were encountered which had to be removed. To accomplish this the defendants used dynamite to blast them. The plaintiff submitted evidence to show that the explosions induced by the use of the dynamite partly caused the injury to his property. The other negligent act of the defendants complained of, was their failure to close up the trench within a reasonable time after the work was done, in consequence of which it partly filled up with water, causing the soil to slip down and thereby contributing towards the injury to the plaintiff’s property. The single assignment of error raises the question whether the court below ought to have given binding instructions for the defendants.

In Menner v. Canal Co., 7 Pa. Superior Ct. 135, in considering the circumstances which justified the court below in directing a verdict, we said: “ To justify a verdict by direction, two conditions must concur: (1) The controlling facts must be established beyond doubt; (2) their effect, in the conclusions to which they lead, must be so clear and unquestionable that it may be judicially declared.” Under this rule it would have been clear error to have directed a verdict for the defendants, for the controlling facts were not established beyond doubt. Plaintiff’s evidence showed that the blasting was done in front of an adjoining lot and within about fourteen feet of his own lot, and that the trench was allowed to remain open from thirteen to fourteen days. It is true the defendants’ testimony was to the effect that no blasting at all was done within 290 feet of one side of plaintiff’s lot, and within 300 feet of the other side of his lot, and that the trench was not allowed to remain open more than three or four days. With the evidence thus conflicting it is too plain for discussion that the learned trial judge could not properly have given binding instructions for the defendants. He went as far as the defendants could have reasonably asked him to go when he said to the jury that if they believed that these blasts were as far off plaintiff’s premises as defendants’ evidence showed they were it was not probable that they would have done very much damage to plaintiff’s property. There was also much conflicting evidence as to whether the explosion of the dynamite and the failure to fill up the trench were the causes of the injury to the plaintiff’s property, but the plaintiff’s evidence, if believed, was sufficient to have justified the jury in concluding that these two acts of the defendants did cause the injury. There being this irreconcilable conflict of evidence on these points, it is manifest that the learned trial judge could not have given a binding instruction that would have ignored entirely the plaintiff’s evidence. An examination of all the testimony satisfies us that it was a case that should have gone to the jury.

Judgment affirmed.