Bricker v. Conemaugh Stone Co.

Opinion by Beaver, J., The voluminous record which we have here, in the analysis of the numerous assignments of error made by the appellant, presents but two questions. The first is one of fact the appellant arguing, however, that there was not sufficient evidence upon which the jury could find the essential fact which underlies, its verdict. This fact, succinctly stated, was, did the residuum of the defendant’s quarrying and stone crushing operations, cast into the stream upon which its works were situated, constitute or contribute to the sediment which settled in the mill dam of the plaintiffs lower down the stream and render their mill, which depended upon the stream for power, less valuable, requiring at times the entire stoppage of the mill, in order to remove the sediment from their race,and the dam which fed it? There are some facts of universal human experience, founded upon natural law, which can scarcely be disputed. One is that water will run downhill; another is that substances heavier than water will sink to the bottom, and yet another, that substances cast into a stream, even although heavier than water, will be carried downstream, if the volume and velocity of the stream exceed in momentum the resisting power of the deposit. The appellant would seem to argue against these apparently self-evident facts, in attempting to convince us that the jury [289] ■was wrong in finding that the defendant at least contributed to the injury which was undoubtedly, suffered by the plaintiffs. The testimony as to- the injury was practically undisputed. Whether or not the defendant contributed to it was fairly left to the jury, upon abundant evidence. • Samples of the sediment, which settled in the plaintiffs’ mill dam and race, were brought into court and the testimony of witnesses, tending to connect 'the residuum created by the operations of the defendant and this material, taken at considerable length. There was more or less qf dispute in regard to this question, depending upon the color and character of the deposit, but a consideration of the testimony leaves us in no doubt as to the necessity of submission of it to the jury. The court did this in a very plain and impartial manner. The jury could not be in doubt as to what their duty was. The testimony was impartially weighed and fairly submitted. With the verdict of the jux-y, rendered under such circumstances, we have no right to interfere, and would have no disposition to do so in this case, even if we had such a right. The second question is one of law: Did the court propei-ly instruct the jury as to tbe measure of damages? Under the facts, as developed in this case, the damages were evidently two-fold: First, the cost of removing the deposits occasioned by the acts of the defendant from the dam and race of the plaintiffs, and, second, the compensation for the total or partial loss of the use and enjoyment of the premises in the meantime, or in other words, the difference in rental value of the property, as affected by the injury complained of. Thei-e was no evidence, and appax-ently no claim, that the cost of the removal of the deposits and the restoration of the property' to its former condition would be greater than the injury from those' deposits if allowmd to remain. In that case, the true measure of damages would have been the difference between the market value of the land before and after the deposits were made. But, before the latter measure of damages may be invoked, it is incumbent on the pex-son injured to give evidence from which a jury may conclude with some degree of cei-tainty that the former measure will not fully compensate hiin for the injuries : Hoffman v. Mill Creek Coal Co., 16 Pa. Superior Ct. 631; Elder v. Lykens Valley Coal Co., 157 Pa. [290] 490; Stevenson v. Ebervale Coal Co., 201 Pa. 112; 203 Pa. 316; Bachert v. Lehigh Coal & Nav. Co., 208 Pa. 362. The instructions of the court upon this subject, as complained of by the defendant .in the ninth assignment of error, were, in general, that the measure of damages was the loss of profits of the business of the plaintiffs. If these instructions had been confined to the actual loss of custom which could have been definitely measured, such as the turning away of persons with particular loads of grain which plaintiffs were unable to grind, because of the stoppage of the mill, occasioned by the cleaning out of the dam and the race, this might have been regarded as outside the realm of speculation at least, and might have been some evidence of the loss of rental value. The court, however, goes much farther and says: “ If, however, the jury should find that the keeping of the dam and the race in repair, as we have explained, exceeds the loss of profits, then the loss- of profits is the true measure of the damages. And, if the jury should find that, from the December of 1903 to March the 3d, of 1904, sand from the defendant’s plant came into the plaintiffs’ millrace so often that it could not be removed and compelled the plaintiffs to close down their mill between these two dates, the measure of damages would be the loss of the profits.” This we think was erroneous. It was not only contrary to the well settled rule to which we have previously alluded, but introduced a measure of damages speculative and incapable of definite ascertainment. Compensation and not speculation is the invariable rule. Our Pennsylvania cases are those under contract, but, as stated in Sedgwick on Damages sec. 175: “ The early cases, in both the English and American courts, generally concurred-m denying profits as any part of the damages to be coihpensated, and that, whether in cases of contract or of tort.” This rule has been followed very closely in Pennsylvania: Fleming v. Beck, 48 Pa. 309; Rogers v. Bemus, 69 Pa. 432; McConaghy v. Pemberton, 168 Pa. 121, in which in the report of the master at page 132 the whole question is carefully considered : Duffield v. Rosenzweig, 144 Pa. 520. Not only did the court lay down an erroneous rule as to the measure of. damages, but submitted to the jury a mode of ascertaining profits which was indefinite and unreliable. After [291] reciting the figures given by one of the plaintiffs, as the gross receipts from the mill for previous years, the court said: “Now, gentlemen of the jury, that gives you some data from which to figure what would be the loss of their profits. If those figures show gross profits, then from that should be taken what went to the miller, and the cost of repairs and insurance and taxes, and anything else in the nature of expense, so that you could arrive at what the net profits would be, because it would be only the loss of the net profits that the plaintiffs would be entitled to recover.” There was no evidence, however, as to these several items which the court said should be deducted which would enable the jury to reach a definite conclusion. The plaintiff, who testified as to the receipts, admitted that he jvas unable to say what the taxes had been, and there does not seem to have been anything said as to the insurance and the other items concerning which the court intimated deduction should be made. The appellant cites, and attempts to rely upon, the well-known case of Penna. Coal Co. v. Sanderson, 113 Pa. 126, as an absolute bar to recovery. This case is exceptional and rests entirely upon its own facts, and has been distinguished, bj' the court which rendered it, from cases such as this in Hindson v. Markle, 171 Pa. 138. As said in that case: “ The case of Penna. Coal Co. v. Sanderson, 113 Pa. 126, is not at all in point. That was the mere flowage of natural water which was discharged by natural and irresistible forces, necessarily developed in the act of mining, prosecuted in a perfectly lawful manner. Whije the mine water thus discharged polluted the water of the stream in which it necessarily flowed, it caused no deposit of any foreign substance on the land of the plaintiff and did not deprive her of its use.” The conditions here were similar to those in Hindson v. Markle, so that the Sanderson ease has no application. We have not followed the assignments of error in the’ir order, nor have ive thought it necessary to deal with them separately. The real questions in the case, however, have been, we think, sufficiently covered by what has been said, and the true measure of damages indicated, so as to avoid the error complained of, in a retrial. J udgment reversed and a new venire awarded.