Hartman v. Pittsburgh Incline Plane Co.

Opinion by

Mr. Chief Justice Sterrett,

If the inquiry, contemplated by the offers recited in the first three specifications of error, were any longer an open question in this state, the rejected testimony should have been received; but, unfortunately, as it appears to me, the court is of opinion that our decisions. construing article XYI, section 8 of the constitution, have closed the door against such evidence in cases of the class to which this belongs: Lippincott v. Railroad Co., 116 Pa. 472 ; Railroad v. Marchant, 119 Pa. 541; Jones v. Railroad Co., 151 Pa. 31; Penna. Co. v. Railroad Co., 151 Pa. 334. It was not proposed to show that defendant company’s structure rests upon or overhangs any part of plaintiff’s land, either within or outside the lines of the street. It is therefore unnecessary to further notice either of said specifications.

The fourth and last specification presents a different question, to wit:» whether the learned court erred in refusing to take off the judgment of nonsuit?

It is well settled that such refusal is tantamount to a judgment for defendant on demurrer to plaintiff’s evidence, except that, in case of reversal, the record must be remitted with a procedendo, instead of giving judgment for plaintiff here: Finch v. Conrade, 154 Pa. 328. Hence it follows that, in considering the testimony in such cases, plaintiff is entitled to the benefit of every fact and inference of fact that might have been fairly found by the jury or drawn bjr them from the evidence before them. Testing the case at bar by that rule, we have no doubt the judgment of non pros should have been taken off. Without undertaking to summarize the testimony on which plaintiffs relied, or to refer specially to any portion of it, we think it is quite sufficient to have warranted the jury in finding in their favor. It tended to prove, among other things, that defendant company, chartered under the act of 1874, constructed its double track incline against the westerly side of plaintiffs’ dwelling house (located on the northerly side of Frederick street) and thence, on an ascending grade, across the street at right angles thereto. On the north side of the street, the structure is elevated eight feet above the sidewalk, and on the south side several feet higher. Beginning at plaintiffs’ house and extending thence forty feet westerly along the northerly line of the street, defendant built a heavy stone wall or abutment, on which were placed four iron'beams, thirty-six inches wide vertically, by which the superstructure was supported. That part of said abutment adjoining plaintiffs’ dwelling was so constructed that water, conducted there by the iron beams and otherwise, was discharged against the brick wall of the house and so saturated the same that the plaster and paper on the inside thereof was injured and partially destroyed, and the rooms became mouldy and untenantable. While the witnesses did not state, in dollars and cents, any amount of damages resulting to plaintiffs therefrom, they so described the nature, character and extent of the injury to the plastering, etc., that the jury could have ascertained with reasonable accuracy the amount thereof. As described by the witnesses, the actual damages were by no means inconsiderable. In Allison v. Chandler, 11 Mich. 542, it was said: “ Juries are allowed to act upon probable and inferential, as well as direct and positive proof. And when, from the nature of the case, the amount of damages cannot be ascertained with certainty, we can see no objection to placing before the jury all the facts and circumstances of the case having a tendency to show damages and their probable amount, so as to enable them to make the most intelligible and probable estimate that the nature of the case will permit.” The ordinary intelligence and experience of jurors is sufficient to enable them to say with reasonable accuracy how much it would cost 'to repair damages such as were described by the witnesses in this case. But, if it were otherwise, the plaintiffs were entitled under the evidence to at least nominal damages, unless their witnesses were disbelieved: Pastorius v. Fisher, 1 Rawle, 27; Sedgw. on Damages, 142. In any event, the case is a proper one for submission to the jury.

Judgment reversed and a procedendo awarded.