Coyle v. Pittsburg, Bessemer & Lake Erie Railroad , 18 Pa. Super. 235 ( 1901 )

Opinion by

Rice, P. J.,

This was an action of trespass. The plaintiff was the lessee of hotel premises which fronted on Braddock avenue and extended back along the line of Arbor street about sixty-four feet. At the rear of the plaintiff’s premises Arbor street turns to the right and goes up a steep grade. At a distance of about 110 feet from Braddock avenue, at a point where the ground is from forty to fifty feet higher than Braddock avenue, Arbor street was crossed by a railroad, now operated by the defendant company but originally constructed by the Butler and Pittsburg Railroad Company. At this point a cut was made of about seven and a half feet, and in order to protect the railroad a ten-inch pipe, afterwards replaced by a twenty-four-inch pipe, was laid under the railroad. The plaintiff contended that in consequence of this construction a greater quantity of water was brought down Arbor street, and was so changed from its natural course and concentrated as to be cast upon his premises, thereby flooding his cellar, filling a well with sediment, mixing gravel and sand with his coal, carrying mud and débris into his barroom, rotting the floors and making the premises damp. He claimed also that in consequence of Arbor street being cut up by the water he could not use it for the purpose of hauling coal to the rear of his premises; also that the street was rendered impassable even by pedestrians, whereby he lost patronage.

It is urged that the court erred in admitting testimony bearing upon the allegation of loss of patronage supposed by the plaintiff to result from the impassable condition into which Arbor street was put. This is the subject of the sixth assignment. We do not deem it necessary to discuss the abstract question as to a plaintiff’s right to recover for loss of patronage in his business, and consequent loss of profits which resulted from the tortious closing of a public roadway upon which his premises abutted, or the question whether the plaintiff’s testimony was sufficient to warrant a juiy in finding the facts suggested in the foregoing statement of the question of law. For, in the first place, no exception to the admission of the evidence appears upon the record, and in the second place the court clearly and emphatically instructed the jury in the general charge as well as in the answer to the defendant’s fourth point that under the evidence the plaintiff could not recover for loss of patronage in consequence of Arbor street being rendered impassable. Therefore the sixth assignment is overruled.

Further on in his charge the learned judge enumerated the elements of damage, that the jury might take into consideration, and amongst other things said: “ But the inconvenience of the dampness may possibly have had some effect upon his business. If so it would be an element of damage.” It is barely possible that he did not intend this clause of his charge to be interpreted in the way we are about to suggest. If it stood alone there would be more room for this supposition; but taking the instruction in connection with the qualification of the defendant’s fourth point we cannot avoid the conclusion that a jury would naturally be led to suppose, that, while they could not allow the plaintiff damages on account of the obstruction of Arbor street, they were at liberty to find that he had sustained loss in his business in consequence of the dampness of his premises, and that if they so found it would be an element which would properly enter into the assessment of damages. The size of their verdict does not warrant us in assuming that the jury did not so suppose, but tends rather to show the contrary. And, if the court did not intend its instructions to be taken in that way, it seems probable if not absolutely certain that tbe defendant’s fourth point would have been affirmed without qualification. But while the plaintiff attempted to show that he lost patronage in his business by reason of Arbor street being impassable, we fail to find any evidence whatever which tends to show that he lost patronage or sustained any loss in his business by reason of the dampness of his premises. A reading of the testimony quoted in the sixth assignment of error, which, substantially, is all the testimony there is upon the subject of loss of profits or patronage in his business, will show the absolute correctness of our interpretation of it as above stated. Such being the case, we feel constrained to hold, that there was error in submitting to the jury the question whether the plaintiff had sustained loss in his business from the last mentioned cause. As was said by Mr. Justice Thompson in McKnight v. Ratcliff, 44 Pa. 156, “ it is often much easier to discover when an assumed rule for damages will lead to erroneous results, than to point out in all cases in advance what the true rule should be.” This is especially true where the subject of the loss of profits as an element or measure of damages is under consideration. But in any view of the subject this seems to be clear, that, in the exceptional cases where recovery for loss of profits is allowed, the profits must be susceptible of accurate estimation, they must not be speculative, contingent or uncertain, and the loss of such profits must be the proximate result of the wrong. A valuable collection of cases sustaining this general proposition will be found in the notes to Wallace v. Penna. Railroad Co., 52 L. R. A. 38. A fortiori, the plaintiff ought not to have been permitted to recover damages upon the theory that he lost patronage and consequent profits by reason of the dampness of his premises in the absence of evidence to support that theory. The fifth assignment of error is sustained.

We think the court correctly instructed the jury that if the defendant, the Pittsburg, Bessemer and Lake Erie Railroad Company had nothing to do with the original construction (the original construction was by the Pittsburg and Butler Railroad Company), it would not be responsible for any defect before it took possession, but if it took possession and used the railroad with a defective sewer, it would be responsible for it after it took possession. The burden of proof was on the plaintiff and it must be conceded that the evidence as to the taking possession by the defendant and as to the time when it took possession is not as clear as it ought to have been. But while the evidence is very meager we cannot say that there is no evidence that the defendant was responsible for any part of the injury. We remark, however, that the plaintiff evidently assumed that there would be no controversy as to the matters of fact above suggested, and in doing so took too much for granted.

Judgment reversed and venire facias de novo awarded.