Byrne v. Cambria & Clearfield Railway Co.

Opinion by Mr. Justice Potter, The defendant company had occasion to construct a new line of railroad in Cambria county, on the west branch of the Susquehanna river. In building this road a bend in the river was cut off, and a new channel was formed some 800 feet in length. An embankment extending along the river was constructed, partly with the earth excavated from the new channel and partly with earth obtained elsewhere. Plaintiff is the owner of a water power gristmill, situated on the Susquehanna river, a short distance below the location of the new channel and the embankment. Plaintiff claims that by reason of the work done by the railroad company large amounts of mud, sand, sediment and alluvial deposits were negligently permitted by the defendant to work down into his dam and millraee, thereby seriously impairing his water power, and interfering with the operation of his mill. In his statement he claimed damages amounting to $2,000 for the expense of cleaning the dam and race from time to time, and for the loss resulting from his inability to run the mill on full time. He further claimed damages in the same sum for permanent depreciation in the value of his mill property. The jury found a verdict for the plaintiff for $3,365.83, upon which judgment was entered. In the first and sixth specifications of [220] error the appellant complains that against his objection witnesses were permitted to testify to the amount of the damages in a lump sum, without specifying the items of damage. The plaintiff, when asked what amount of damage had been done to the mill property by reason of the filling of the dam, answered, “ Four thousand dollars, I claim.” And the witness, James Lantzy, in response to a similar question, made a similar answer, giving as his estimate in a lump sum, “ Four thousand dollars for the damage that has been, and what will accrue.” Under the authorities the objection of the defendant to this testimony should have been sustained. Robb v. Carnegie, 145 Pa. 324, was an action to recover damages for injuries to plaintiff’s land alleged to h.ave been caused by the operation of coke ovens maintained by defendants on adjoining premises. A witness having been asked to state the amount of damages done to the property by reason of the smoke from the ovens, objection was made on the ground that the question would elicit from the witness the injury done to the property without distinguishing or specifying how or to what part of the property, etc. The objection was overruled and the witness answered, “ I Avould place it at $10,000.” On appeal, the assignment of error complaining of the allowance of this question was sustained, this court saying (p. 343): “ The question objected to should have been excluded because it called for no fact but for a lumping estimate, which opened the way for the witness to introduce considerations that we have seen had no place in the adjustment of the damages.” The general rule is thus stated in 12 Am. & Eng. Ency. of Law (2d ed.), 460, 461: “ On damages, as on other subjects of expert opinion evidence, the opinion of witnesses must not be speculative or conjectural, but must be based upon facts and conditions existing and proved. Thus in an action of tort the plaintiff cannot answer naked questions as to the amount of damages sustained by him.” And in 3 Elliott on Evidence, sec. 2006, we find the statement that: “ The authorities with few exceptions are agreed upon the proposition that witnesses cannot give their opinion as to the quantum of damages in any given case. . . . The general rule is that witnesses must state facts, and are not permitted to give their opinions founded on [221] such facts, nor can they give inferences or deductions drawn from them. These rules apply almost without exception as to the quantum of damages resulting from any act. So the rule is that a 'witness cannot be examined in such a manner that his answers will relieve the jury from considering and determining the facts submitted.” In the present case we do not find any evidence fixing the amount of the damages except that of the two witnesses referred to, who gave it as the lump sum of $4,000. Neither witness gave the basis or the items upon which his estimate was formed, and the sum named is the same as that set forth in the statement of claim. The first and sixth assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.