Weller v. Davis
Weller v. Davis
Opinion of the Court
Opinion by
The plaintiff in this case is the owner of a lot of ground with a two-story frame house erected thereon, situated at New Castle, Schuylkill County; It appears from the
In the third assignment, it is alleged that the trial court erred in charging the jury with respect to the effect as evidence, of what they had personally seen while inspecting the premises. We do not feel however, that the comment of which complaint is made, necessarily went further than the acknowledged rule, which is, that the jury may make use of knowledge acquired by a view of the premises, for the purpose of enabling them better to understand the testimony of the witnesses, and to determine the relative weight of conflicting testimony as to the values. Without doubt they could use the evidence of their 'senses to that extent, at least. The amount of the verdict does not indicate that the jury ignored the testimony of the witnesses. Evidence offered upon behalf of plaintiff tended to show that the property before the injury was worth from $3,000.00 to $3,500.00 and afterwards was worth from $200.00 to $400.00. That indicated a minimum depreciation of $2,600.00, which was the amount of the verdict. Some of the estimates would have justified a larger award. We think the testimony was sufficient if credited, to support a finding by the jury that defendant was responsible for the injury to plaintiff’s land and buildings. In his general charge the trial judge, after using the language of which complaint is made in the third assignment, called the attention of the jury specifically to the testimony of the plaintiff’s witnesses as to the amount of damages. Defendant offered no evidence on this subject. In the fourth assignment of error counsel for appellant cites a portion of the charge which included a reference to the disturbance of vertical support of the property by blasting, and it is alleged by counsel, that the evidence does not support any claim for damages due to blasting by defendant. An examination of the record does show that dynamite was used for blasting in appellant’s mine, and there was testimony tending to show that this blasting disturbed
The assignments of error are all overruled and the judgment is affirmed,
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- Practice, 8. C. — Assignments of error — Refusal of trial judge to strike out testimony — Instructions to jury to disregard testimony— Refusal of instructions. 1, Where no objection has been made to testimony at the time when it was offered, the refusal of the trial judge to strike it out cannot be reviewed by the Supreme Court. In such case counsel should request the court to instruct the jury to disregard the testimony, and the refusal of such request may be assigned as error. Mines■ and mining — Surface support — Removal of coal — Injuries to buildings on land — Evidence—Negligence—Instructions to jury . — Damages. 2. In an action to recover damages for injuries to plaintiff’s house and the surface of plaintiff’s land resulting from the removal of the coal which underlay the surface, the refusal of the court to admit in evidence the lease for the coal was not reversible error, where plaintiff admitted that defendant was entitled to mine the coal, and made no claim for the value thereof. 3. Where the jury inspected the premises and the trial judge charged that “your own eyes and your own observation of what you saw is the best possible evidence that can guide you. Sworn testimony as a rule cannot be relied upon thoroughly, because there is always more or less contradiction — honést men differ —but what you see, that is within your own personal knowledge, coming to you especially in your official capacity as jurymen, is the best possible evidence to guide you gentlemen in getting at the truth,” he went no further than the acknowledged rule that the jury may make use of the knowledge acquired by a view of the premises, for the purpose of enabling them better to understand the testimony of the witnesses, and the defendant was not injured, where the attention of the jury was directed specifically to the testimony of the plaintiff’s witnesses as to the amount of the damages, and where the verdict was for an amount equal to the lowest estimate of the damages. 4. Where there was evidence that the use of dynamite in defendant’s mine for blasting disturbed the property of plaintiff, the court made no error in submitting this question to the jury, and the contention of defendant that the evidence did not support any claim for damages due to blasting was without merit. 5. In such case it was harmless error to refuse a point submitted by defendant which instructed the jury that plaintiff was not the owner of the coal under his lot, where an item in the statement of claim claiming damages for coal taken was not supported by evidence, and where at the trial the claim for damages was limited to the depreciation in value of plaintiff’s land and buildings. 6. Where the statement of claim alleged that defendant had removed the pillars which were the direct and lateral support of plaintiff’s land, thereby causing the damages íot which recovery was brought and where there was some evidence that defendant jvas negligent in the performance of the work, the trial judge made no érror in refusing to charge the jury that negligence was not alleged or proved. . 7. In such ease the trial judge made no error in refusing to affirm a point which instructed the jury that the measure of damages for the removal of lateral support is the injury to the land in its natural condition, and cannot include injury to buildings or other improvements, where there was some evidence of negligence, and where the point was defective in containing no qualification that where negligence is shown, damages for injury to the buildings and improvements may be recovered.