Esgro v. Gibbons
Esgro v. Gibbons
Opinion of the Court
Opinion by
Under grant contained in a lease of a deep mine from the owner of the land, plaintiffs acquired the mining rights to the “D” seam of coal. Access to the mine and tipple was had over existing roads which had been laid out by the owner and surfaced with shale and red dog from the mine. As an incident of the grant plaintiffs acquired the right to use the,roads in the mining and removal of the coal (Greek v. Wylie,
The testimony is that until defendants went on the land the roads were in good passable condition. In moving their heavy strip mining equipment on to the tract, defendants damaged much of the hard surface of the roads and broke down drainage pipes in culverts. By use of a bulldozer they also had altered the course and grade of the roads. As a result the roads became impassable for plaintiffs’ trucks and their mining operation was closed down for a period of fourteen days pending repairs which plaintiffs were obliged to make to restore the roads. Plaintiffs brought this action to recover the labor cost of repairing the roads; also for damages to a truck, caused by the defective condition of the road; and the loss of profits for the period during which plaintiffs were unable to transport their coal from the mine to the market. The jury found “in favor of the plaintiffs . . in the sum of $840, which represents wages and profits lost during the 14 days idleness.” The verdict does not contain an allowance for damages to plaintiffs’ truck or for the cost of repairing the roads. These two elements of damage were ignored by the jury.
There is no merit in any of the questions raised by the defendants in this appeal. At the trial they did not submit a point for binding instructions; it is idle therefore for them to contend for judgment in their favor n.o.v. King v. Phila. Sub. Trans. Co., 160 Pa. Superior Ct. 26, 50 A. 2d 34. However the testimony imposes liability upon -them. .Both the plaintiffs and the
In considering defendants’ contention that they are entitled to a new trial we need not inquire whether the court erred in submitting to the jury the question of the amount of damage to the truck, on plaintiffs’ meagre testimony. If there was initial error in this respect the error was cured by the verdict, which did not include any allowance for damage to the truck; the error, if any, therefore was harmless. 3 Am. Jur., Appeal and Error, §1042; Jaski v. W. Park Daily C. & D. Inc., 334 Pa. 12, 5 A. 2d. 105. Cf. Quinn v. American Range Lines, 344 Pa. 85, 23 A. 2d 487. Moreover .it is unimportant under the circumstances that plaintiffs’ proof of loss of profits, stated to be at the rate of $60 per day, may not strictly conform with the rule of Apfelbaum et ux. v. Markley, 134 Pa. Superior Ct. 392,
Judgment affirmed.
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