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ENOCH v. NEW ENTERPRISE STONE AND LIME COMPANY (09/13/62)

September 13, 1962

ENOCH
v.
NEW ENTERPRISE STONE AND LIME COMPANY, INC., APPELLANT.



Appeal, No. 84, April T., 1962, from order of Court of Common Pleas of Somerset County, No. 970 C.D. 1960, in case of Charles Enoch et al. v. New Enterprise Stone and Lime Company, inc. Order reversed.

COUNSEL

Archibald M. Matthews, for appellant.

Frank A. Orban, Jr., for appellees.

Before Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 199 Pa. Super. Page 221]

OPINION BY FLOOD, J.

The question to be resolved on this appeal is whether the verdict for the plaintiff should be regarded as a proper compromise verdict, to be left undisturbed, or whether the trial judge properly exercised his discretion in granting a new trial by reason of the inadequacy of the verdict.

The verdict for the plaintiffs was in the sum of $2000. The repair of the damages which, they claim, resulted from the defendant's blasting will cost a much

[ 199 Pa. Super. Page 222]

    larger sum - over $7000 according to the plaintiffs' expert and something in excess of $4000 according to the defendant's expert. The trial judge observed that, since the liability of the defendant had been determined by the verdict, the only question remaining was its adequacy. In his opinion, the amount of the jury's award cannot be supported even under the defendant's evidence and does not bear a reasonable relation to the amount of proven damages. He therefore granted a new trial limited to damages only.

While there is no doubt of the defendant's liability for whatever damage its blasting caused to the plaintiffs' hotel (Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A.2d 817 (1949); Laventhol v. A. DiSandro Contracting Co., 173 Pa. Superior Ct. 522, 98 A.2d 422 (1953)) and there is also no doubt that the verdict was seriously inadequate if the blasting caused all the damage which the plaintiffs claimed, there is serious doubt about whether the blasting did cause all of these damages.

The court below seems to assume, in its opinion, that the verdict for the plaintiffs was not only a finding of liability - which it clearly was - but also a finding that the defendant's blasting caused all of the damage which the plaintiffs claim - which it patently was not. The court did not discuss causation in its opinion. The trial judge in his charge called the jury's attention to the defendant's contentions that it did not do any damage, and that the damage, if any, must have been caused by the prior blasting of the Latrobe Construction Company. However, he then instructed them that this was an affirmative defence as to which "the burden is not on the plaintiffs to overcome it but the burden is on the defendant to ...


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