The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-01-06

TO remove his cause to Pike county under
the provisions of the act of April IA, 1881,
L. l.. S95.
ONE ANSWER CITED.
ON the argument of the rule to take off
the non-suit the only ground assigned
was the want OF jurisdiction.
| Our answer to the argument is to be
| found in the case of Felts VS.. the Della
4 ware Lackawanna and Western Rail-
| road company, 40 Pa. l32, the same case
| that Is now before us. 1t will be. seen at
| once that We are asked to ait in Judgment
upon the decision of the Supreme court
| in this case. 1t might be pleasant va
ration of judicial work for a court of
| common pleas to exercise appellate Jur-
| isdiction over the judgments of our Su-
preme court but, with becoming mod
esty. we shall allow the appellate tiib-
unal itself to change or modify it's own
judgments. whenever it feels called upon
to exercise tnat high privilege.
The rule to take off the non-s,it Is lis
charged
In the Gavigan case the proceedings
were brought to recover damages for
injuries occasioned in the alleged neg
lgent manner in which the defendants
companys works are conducted A
verdict of $500 was awarded at the
first trial and al retrial of the case
in the September sessions of last year
the award was increased to $l2S6. The
opinion discharging the rule for another
new trial is in part as follows;
II was seriously contended by defend
ants counsel that there was no tangible
testimony upon which the jury could
assess damages. Let us look at the facts
The properties of plaintiff and defendant
are near each other. The plaintiff pur-
chased his house and lot about fourteen
years ago, and has occupied ii ever since.
A few years afterwards the defendant
erected on its property an oil establish
ment for the purpose of receiving, stor-
ing and distributing oils of various kinds.
The. business carried on by the defendant
way an extensive one The plaintiff
claimed that the soil of his land was sat
urated with oil escaping from the de-
fendant's plant, and percolating through
the intervening lots, reaching his cellar;
that the odors and smoke from defend
ants works were unwhoesome and Of
fensive, and of such character that
the plaintiff had to close the windows and
doors of his house in summer; and that
the effects of these offensive odors upon
his health was injurious. causing nausea
and loss of appetite.
INSTRUCTIONS TO JURY.
Are these such substantial injuries as
would entitle the plaintiff to damages?
On this point We instructed the jury in
these words; "m the course of the pro-
gress of the development Of a town like
Scranton one must expect Inconvenience
and discomforts. Smoke stacks, smoke
and odors are necessarily incidental to
Abe opera ton of many of the industries
OF the city. The smoke and cdors ascend
into the air and impregnate it. The com
munity at large suffers some inconven-
ience and annoyance on account of this.
But such Inconvenience and annoyance
must be endured by the public without
redress. No damages can be recovered
by anybody under such conditions The
individual must sacrifice some comforts
for the sake of the general welfare. Nor
can any person recover damages If his
personal preferences as to choice of resi-
dence are interfered with A livery sta
BILE, saloon or Il distillery may be To-
Gated next to ones residence and would
naturally diminish its comfort and value
but the owner would be without redress
so far as mere proximity is concerned
AT the same time the business is so
conducted as to affect the reasonable use
of adjoining property or the health of it's
occupants, such tangible and substantial
injuries might sustain an action for dam
ages SO that to enable a plaintiff to re-
cover damages in case such as we are
now trying, 1t must be shown by the
fair weight of the testimony that he has
suffered actual and substantial injury,
peculiar to himself either in the reason
able and necessary use of his home or
in his health and physical comfort Are
you satisfied that such injury has been
shown in this case? If you are satisfied
that such injury has been shown, is It
10 be attributed to the business carried
on by the defendants or to the manner
in which this business is to be con-
ducted?'
Some of the expressions in this extract
from the court are taken from the opin-
Ion of the court In the case of Robb VS.
Carnegie 1i5 Pa, 1924. And under all the
evidence we do not think the amount of
the verdict ls unreasonable or excessive
We can find no reason in the whole
record or this case which would Justify
MS IN granting new trial. The rule is
therefore discharged, and new trial re-
fused.
OTHER CASES.
The rule to open judgment in the
case of f. Sweet against A. p. Lewis
and Fl, ], Lewis was made absolute bv
Judge Edwards.
In the divorce case of Michael Smith
against Maria Smith, Judge Edwards
refuses the petition for alimony dur
ing the pending of the proceedings. bur
allows counsel fees to the amount of
$25.
Harry A. Wall was granted divorce
from Rose A. Wall, Judge Edwards
handing down the decree The parties
We're residents of Mulberry street, this
city. They Were married Nov 20. 1889
and lived together until Aug. 16, 1895,
When it is alleged the wife ran away.
unfaithfulness was also alleged as one
OF the reasons for divorce, one Walter
carey being named as correspondent
In the case of Myers Bros. Cloak |
company against A. w. Block. a rule
was granted on the plaintiff to show
cause why the attachment should NOT |
be dissolved, returnable at next argu- |