McFadden v. Rausch

Opinion,

Mr. Justice Williams :

The evidence in this case shows that McFadden was a contractor on the Reading and Pottsville Railroad. His employees were engaged in blasting rocks on land adjoining that of Mrs. Rausch and within five or six yards of her house. On the 15th of September, 1885, a blast was discharged which seriously injured the house, opening cracks in the walls, shaking down the chimney and portions of the plastering, and so disturbing the foundation that the doors would not shut and the brick walls were weakened. This action was brought against McFadden to recover for the injury which his employees had thus inflicted upon Mrs. Rausch. The jury to which the case was submitted returned a verdict in favor of the plaintiff “for $629 actual damages, and $71 exemplary damages, in all seven hundred dollars;” and judgment was entered on the verdict for the sum of $700.

On the trial, the title of Mrs. Rausch was not denied. It was not denied that McFadden was the contractor whose employees were doing the blasting. It was not denied that the house of the plaintiff was injured to some extent. The entire case of the defendant consisted of the testimony of two witnesses, both of whom were mechanics, and who were called to show that the cracks in the walls, the broken plastering, and the chimney could be patched up at an actual expense of from $100 to $200. The learned judge of the court below instructed the jury that, upon the evidence, the only question was as to the amount of damages which the plaintiff ought to recover. This instruction is the subject of the first assignment of error. We have looked over the testimony and we conclude that the amount of the damages to which the plaintiff was entitled was the only subject about which there was any conflict in the evidence. It seems to be the only subject really mooted at the trial. No question was raised at the time about the correctness of the instruction, and none was raised so far as the paper books enable us to judge, on the motion for a new trial. It ought not to be raised now for the first time, and, upon the facts of this case, it is without merit.

The fourth assignment of error raises a question of the admissibility of certain testimony under the pleadings; but, as the plaintiff in error has not seen fit to place the pleadings before us, we are unable to consider the question and for that reason dismiss the assignment.

The second and third assignments allege error in the submission of the question of gross negligence and wanton recklessness. The evidence upon which the jury was allowed to consider this question, was the declarations made by persons about the quarry as to the amount of explosive used. Who these persons were and what relation they stood in towards McFadden, does not appear, except as it may be guessed at from the testimony of the witness Machemer, which is as follows :—

Q. Do you know how large a quantity of powder was put in? A. I did not see it. I can only say what I heard said. Q. Whom did you hear say it? A. I heard it from the people who were working there. Q. What was it ? A. They said nine kegs, nine cases, and also dynamite.

From this testimony it was not certain when the statement was made, or by whom, or whether it related to a single explosion or to the work of the whole day. Taking it just as it stands, it was incompetent for the purpose of affecting McFadden and should not have been submitted to the jury. That portion of the verdict which is for exemplary damages necessarily rests upon a finding of wanton recklessness on the part of McFadden’s employees, and that finding rests, or may, upon the incompetent testimony which we have just considered.

The only remaining assignment raises an important question which under the view we have taken of this case is not necessarily involved in it. The learned judge of the court below instructed the jury, that if they found, from the evidence, McFadden’s employees were guilty of wanton recklessness they might punish him for their misconduct by imposing exemplary damages. Dicta may be found in several of our cases which seem to sustain this instruction, but we recall no case in which this precise point was necessary to a decision. The rule of respondeat superior, though a salutary and well established one, is ordinarily harsh and severe in its application. When the master has made full and complete pecuniary satisfaction for the injury done by the reckless conduct of his servant, it would seem reasonable and in consonance with the dictates of justice that the punishment over and beyond compensation, should fall upon the back of the offender, rather than on that of his employer. But as we shall dispose of the exemplary 'damages because of the incompetency of the evidence on which such damages must have been found, it will be unnecessary to consider the question raised by the instruction complained of.

The judgment of the court below is reversed upon the second and third assignments of error. But as the jury have found separately the exemplary and the actual damages,

Judgment is now entered upon the verdict for the sum of six hundred and twenty-nine dollars, the amount of the actual damages found by the jury, with interest and costs accrued in the court below.