Fischer v. Sanford

Opinion by

Beeber, J.,

This case was tried upon the right theory. The jury were told by the court that the mere establishment of defendant’s livery stable at the place complained of did not afford a ground for recovery; that a verdict could be found against the defendant only upon one of two grounds, either because the defendant had negligently constructed his livery stable, or because he had negligently conducted it after its construction; that the burden of proving defendant’s negligence in this respect was on the plaintiff, and that no damages could be found unless they were such as the evidence ..showed resulted from negligence. Authority for this is found in Keiser v. Gas Co., 143 Pa. 276, and Robb v. Carnegie, 145 Pa. 324.

The second and third assignments of error are to the answers of the court below to the plaintiff’s second and fourth points. These two points requested the court substantially to charge that if the jury believed from the evidence that the use and enjoyment of plaintiff’s property, or the health of his family, were injuriously affected by the noise of the stamping of horses at night, by foul odors, water and urine, or by cockroaches, coming from defendant’s stable, they could take these things into consideration in arriving at a verdict. In answer to them the court said that they could consider all these matters, but that they did not afford a ground of recovery unless the jury were satisfied that they were caused by the defendant’s negligence. As he had already told them that the defendant must be found guilty of negligence either in the construction or operation of his stable before there could be a recovery, we do not see how the jury could fail to understand that they were only to consider the matters named in the points if they found the defendant negligent in one of these two respects. The defendant cannot complain because lie at the same time intimated to the jury in strong terms that in his opinion the evidence in favor of defendant preponderated. There is no valid ground of objection to the learned court’s answers to these points.

The fourth and fifth assignments are to the refusal of the court below to affirm the third and fourth points submitted by the defendant. These points, in effect, ask the court to charge that the defendant was not bound to erect another wall close to his party wall to deaden the sound or to prevent odors from reaching the plaintiff’s family, and that his failure to do so was not negligence. The court declined to affirm these points upon the ground that it was for the jury and not the court to say under the facts of the case, what, if anything, the defendant ought to have done other than what he did to prevent the injury to plaintiff’s property. This was clearly right. A large amount of testimony had been given to show just what the defendant did, both when he built the stable and whilst he was operating it. All this had to be considered by the jury because it was the proper tribunal to determine the question whether the defendant had been negligent either in building or in operating. That the court’s answer to these points was correct is so clear that further discussion is unnecessary.

The first, sixth, seventh and ninth assignments complain of the court’s instruction to the jury on the question of the extent of the plaintiff’s damages. It is insisted by the appellant that there was error by the court below in its directions to the jury as to the difference between the rental value of the plaintiff’s property before the stable was established and afterwards. The court explained to the jury that if the plaintiff was entitled to recover anything at all it was to be an amount equal to the extent of the injury caused by the defendant’s negligence. In considering this question it was proper for the jury to take into consideration the difference in the rental value of the property before the stable Avas either negligently constructed or negligently operated and afterwards; also whether the sickness in the plaintiff’s family was caused by the defendant’s negligence, as well as the cost or expense to the plaintiff in moving from the premises, provided he was compelled to do so by the defendant’s negligence. There is nothing in Keiser v. Gas Co., 143 Pa. 276, that conflicts with this measure of damages. Whilst there is language in the opinion in that case to the effect that a loss in the rental value of real estate by reason of the establishment of an undesirable business in one’s vicinity does not give a cause of action, this must be understood to mean that the mere establishment of such a business, apart from the question of negligence in establishing it or conducting it, does not give such a cause of action. It appears, both in that case and in many others, that the loss of rental value is proper for -consideration in a case where the injury is caused by negligent construction or operation. One of the most recent is Herbert v. Rainey, 162 Pa. 525.

The tenth assignment of error'is to that part of the charge of the learned court in which he told the jury that if they recollected that certain witnesses had said anything about an examination of the floor they should not heed what he had previously said in his charge on this subject. This was entirely jiroper. The learned judge in his charge had said that there had been no testimony offered by the plaintiff as to an examination of the floor of the stable, but when his attention was called to the fact that there was testimony to that effect, it was very proper for him to say what he did to the jury. The eighth assignment of error need not be noticed. This was not a case where binding instructions could have been given for a defendant, and the eleventh assignment is merely formal. We are satisfied that this case, as we have said, was tried upon the right theory and that no errors of law have been committed by the court below. All the assignments of error are overruled.

Judgment affirmed.

Per. Curiam, January 17, 1900:

The above opinion was written by Judge Beeber during his term of office as a member of this court, the case having been duly assigned to him for that purpose. It is now adopted and filed as the opinion of the court.