DocketNumber: Appeal, No. 11
Citation Numbers: 57 Pa. Super. 412
Judges: Head, Henderson, Kephart, Orlady, Porter, Rice, Trexler
Filed Date: 7/15/1914
Status: Precedential
Modified Date: 2/18/2022
Opinion by
This action of trespass was brought to recover damages for injury to an island, owned by the plaintiff, alleged to have resulted from the wrongful act of the defendant company in depositing large quantities of culm and coal dirt in the Susquehanna river, which culm and dirt was by the current of the river deposited upon the said island and rendered the land useless for agricultural purposes. The plaintiff recovered a judgment in the court below and the defendant appeals.
We would not be warranted in holding that the remark of counsel for appellee of which complaint is made in the third specification, and the refusal of the court to withdraw a juror because thereof, was, in the circumstances, reversible error. The remark was not made in an address to the jury, and seems to have been an incident of one of those unseemly exchanges of compliments between counsel which sometimes occur in the examination of a witness. The language brought upon the record is a part only of a sentence, and the alertness of counsel for the defendant was successful in preventing counsel for plaintiff from stating what it was that he could not refrain from doing. We are left entirely in the dark as to which one of the primary human instincts was at that moment dominating the learned counsel for the appellee. The .force of the remark having been thus broken, the offender promptly rebuked by- the court, and the jury immediately instructed that they were not to be influenced by the remark, we are not satisfied that the interests of justice require us to sustain this specification of error: Brown v. City of
The ninth and tenth specifications of error refer to the manner in which the court instructed the jury as to the propriety of allowing to the plaintiff compensation for delay in payment of any damages which her land might have sustained. The language of the court in its general charge, and the point submitted by plaintiff which was affirmed were certainly objectionable. If it did not clearly appear from the manner in which the jury returned their verdict, that the instruction did no harm, these specifications of error ought to be sustained. The jury returned the following special verdict: “We, the jurors in the case .... -find the island damaged to the amount of $1,500, and the West End Coal Company’s proportion of this damage to be $500.” This, it is to be noted was not a general finding of damages in favor of the plaintiff. The verdict is a finding of the specific fact that the island was damaged to a specific amount, and that the defendant company was responsible for one-third of that specific damage. We are, therefore, of opinion that the error worked no injury to the defendant company’s cause.
The judgment is affirmed.