Kirwin v. Delaware, Lackawanna & Western Railroad

Opinion by

Mr. Justice Moschzisker,

This is a companion case to James Kirwin and Margaret Kirwin against the present defendant, which has been disposed of contemporaneously herewith; there the claim was for injuries to the plaintiff’s real estate, while here it is for physical injuries to the person of the plaintiff. A nonsuit was entered, which the court below subsequently refused to remove; hence this appeal.

It appears that, when the surface of the land under the plaintiff’s house subsided, she was hurt by being thrown against the kitchen sink. In the other case, we decided that, at the time of the injury, the defendant company was lawfully engaged in mining its own property and owed no duty of surface support; further, that no negligence was shown in the manner of mining which contributed or caused the injury to the plaintiff’s property. Not only was no negligence or wantonness proved, but, on the contrary, the evidence showed that the defendant company had notified the plaintiff, at least a month before the date of the accident, that its underground operations were approaching the line of her property, and, as a matter of courtesy, had offered to remove her belongings, to another house at its own expense, so she would not be injured or inconvenienced by blasts fired in the mines at locations apt to affect the house in which she lived. This offer, although communicated to the plaintiff’s husband and son, was not acted upon by any of them. The offer was renewed a few days before the date of the injury, and, on the morning in question, the, outside foreman of the defendant company (who had nothing to do with the underground mining) told , the plaintiff that she should leave her house; when .she failed to comply with this warning, he again notified her, fifteen minutes before the blast was fired.

The plaintiff testified the defendant’s representative told her at this last interview that, if she did not get out at once, he would blow her to pieces; but it is evident this was meant as a forcible warning, not as a wanton threat, for, as previously noted, the man who talked with the plaintiff had nothing to do with the mining operations, and had no power or control over the time of the t)last, nor was there anything to show that he had precise knowledge as to when the blast would occur. Finally, there was no evidence indicating that those in charge of the underground operations knew the plaintiff was in her house at the time they fired the blast which caused the damage complained of at bar.

The assignment of error is overruled and the order refusing to remove the nonsuit is affirmed.