Bachert v. Lehigh Coal & Navigation Co.

Opinion by Mr. Justice Fell, This action was to recover damages for loss sustained by the plaintiff, a lower riparian owner, by reason of the deposit of coal dirt in his mill dam and race and on a portion of his land. The plaintiff’s property was on a bank of the Little Schuylkill river, from which his water power was derived. The defendant owned a number of collieries near the banks of Panther [367] creek, which flowed into the river some distance above. It was not disputed that the plaintiff’s property had been injured by the deposit of refuse matter from collieries, and that this refuse matter came mainly from the creek and was carried into the river at times of unusually high water. The defendant denied that it had been negligent, and claimed that its mining operations had been carried on in the most skilful manner, and it showed that it had built retaining walls by the side of its culm banks and had constructed settling dams, mud banks and other appliances to protect Panther creek and its tributaries^ and had.spent a half million dollars in its efforts to prevent refuse from its collieries from passing into the river. The controverted questions at the trial were (1) whether the defendant was liable at all; (2) if liable, for what part of the loss sustained, since there were collieries in the valley of Panther creek not operated by it; (3) the measure of damages, whether the cost of removing the deposit of refuse or the depreciation in the value of the property. The main objection urged to the charge is that it tended unduly to lead and control the jury, and was prejudicial to the plaintiff. In the part objected to the learned judge told the jury that their verdict should be founded on the evidence, and cautioned them not to be influenced by sympathy or prejudice, and in clear and distinct but temperate language admonished them that a disregard of this instruction might lead to a setting aside of their verdict. This was followed by a statement of the rights of each of the parties, the ground of the defendant’s liability if any existed, and the measure of damages in the event of a recovery. It was the right of the judge to give this caution, and in view of the passions and prejudices that grew out of the labor troubles in the anthracite coal regions in 1902 and which existed at the time of the trial, it may be said to have been his duty to charge as he did. In the recent case of Stevenson v. Ebervale Coal Co., 203 Pa. 316, it was said : “ It was the clear duty of the court below in peremptory language to hold the jury down to the lawful damages, and if they disregarded the instruction to set aside the verdict. What the plaintiff had a right' to ask was that he be made whole-, not rich. It was the duty of the court to see that this result and this alone was reached.” This is always the rulé. [368] It was much better to reach a proper result by an instruction in advance of the verdict than by granting a new trial after it had been rendered. No question of fact was taken from the jury, and there was no attempt to control them except by pointing out their plain dut3r and advising them that their action was subject to review, and that it was not in the power of a jury to plunder at will. The charge as a whole was a very clear and able presentation of the questions involved and of the law applicable to them, and we see no valid ground of objection to any part of it. Prima facie the measure of damages was the cost of removing the refuse deposit, and the instruction on this subject was in accordance with the rule stated in Stevenson v. Ebervale Coal Co., 201 Pa. 112. The defendant was not answerable for the acts of its lessees who operated collieries in the basin of Panther creek done without its knowledge and consent. The objection was properly sustained to the plaintiff’s witness called as an expert as to the value of the property, since his knowledge was limited to the value of farm lands in the vicinity, and the property was to be considered as a whole, including both the farm and the mill site. The assignments to the admission of expert evidence offered by the defendant are not in compliance with the rule that the testimony admitted under objection should be set out in the assignment. The judgment is affirmed.