Welliver v. Pennsylvania Canal Co.

Citations

• 23 Pa. Super. 79
• 1903 Pa. Super. LEXIS 19

Syllabus

<p>Practice, C. P. — Trespass—Sending statement out with jury — Assignment of error.</p> <p>It is not good practice in an action of tort to send a statement of any kind with the jury, particularly in a case where the evidence is conflicting, and where the claim for damages is simple and easily kept in mind by the jury.</p> <p>Where in an action of trespass a statement is sent out to the jury, but no exception is taken at the time, and no request is made at the time that the statement be placed upon the stenographer’s notes, and although such a request and exception were made afterwards and allowed, the statement in fact is not placed upon the notes, and never became part of the record, no assignment of error can be based upon the action of the court in permitting the statement to be sent out with the jury.</p> <p>Trespass — Damages to land — Evidence.</p> <p>In an action of trespass to recover damages for injuries to land, the measure of damages is the cost of remedying the injury, unless such cost exceeds the value of the property injured in which case the value of the property becomes the measure of damages. It is not therefore improper to admit evidence as to the value of the land so that the jury may not return a verdict in excess thereof.</p> <p>Trespass — Injury to land — Ganal—Duty to landowner.</p> <p>Where land is being injured by a break in a canal, it is the duty of the landowner to use all reasonable care, skill and diligence adapted to the occasion to remedy and arrest the injury, but it is not his duty to construct a ditch which will cost more than the value of the land, inasmuch as the landowner can recover no more than the value of the land in any event, and is not bound to expend more in preventing the injury than he could recover from the canal company,</p> <p>Practice, C. P. — Trial—Points.</p> <p>Points which misconceive the evidence, ignore the testimony and assume as facts matters which are contradicted, are properly refused.</p> <p>Canal compa