Opinion,
Mr. Justice Williams:The appellant is a corporation clothed with the right of eminent domain. The appellee is the owner of a city lot fronting on Fifty-first street, in the city of Pittsburgh. In August, 1887, the gas company was engaged in the work of laying its gas main in Berlin alley and Fifty-first street under the authority of a city ordinance. As the line approached Fifty-first street it deflected westwardly, and, leaving the alloy, entered a small lot belonging to B. and E. A. Darlington at a point near the line between Darlington and Keil, followed close to the lino for some distance, and when within about twenty feet of Fifty-first street crossed over on Keil’s lot, and when the line of the street was reached was about 5 feet over Keil’s line. This the engineer in charge of the line testifies was done by the mistake of the workmen, and was not in accordance with the plan of the company. When the mistake was discovered, the gas company tendered a bond to Keil, which was subsequently approved by the court, and then instituted proceedings to secure the condemnation of the ground occupied by them, and an assessment of the damages sustained by the owner. Pending these proceedings, this action was brought in the month of November following the entry.
The entry, having been made without payment of the damages, or the offer of security therefor, was unauthorized, and trespass will lie to recover for the breach of the close. The subsequent tender of a bond, and proceedings for the condemnation of the land, do not divest the right of action for the trespass, although they transfer the adjustment of the damages necessarily consequent upon the entry under the right of eminent domain from the common law action to the statutory proceeding. The right to sue, however, vested at the commission of the trespass: McClinton v. Railway Co., 66 Pa. 404; and damages for the breach of the close, and for any deprivation of use, or other injury sustained prior to the tender of the bond, are recoverable in this action. But for the permanent injury by reason of the appropriation of part of Keil’s lot, and the ef*474feet of such appropriation on the remainder, the damages are secured by the bond, and will be assessed in the proceeding instituted for that purpose, and now pending.
We have not been furnished with a copy of the plaintiff’s declaration in this ease, and we do not know for what items of injury he claimed a right to recover. The claim actually made on the trial, we can gather from the evidence upon which the jury were allowed to pass, and on which their verdict rests. From this it appears that no- allegation was made of the destruction of buildings, fences, trees, or herbage; on the contrary, the lot was unoccupied and uninclosed, without buildings or improvements, and was open to the public. There was therefore no proof of damage presented except that which resulted from the mere breach of the close, and that which was done by the actual appropriation. The evidence all related to the permanent injury done by the entry and appropriation.
The plaintiff made a formal offer on the trial to prove by witnesses “ what' was the market value of that lot before this was done, and what was its value with that pipe in, in the manner they put it in.” This was objected to as presenting to the jury the same injury, and the same measure of damages, which were to be considered and estimated in the pending proceeding for the assessment of damages for the entry .and appropriation by the gas company. The learned judge of the court below overruled the objection, and admitted the evidence. This was clearly wrong. The objection was well taken, and the evidence should have been excluded. The injury which it showed the plaintiff -to "have sustained was that to secure which the bond had been tendered him, and to assess the amount of which proceedings had been begun on the petition of the gas company. The value of the land taken, and the depreciation in the value of that which was left by rendering its occupancy unsafe, or in any other manner, are questions that must come up, and be determined, in the proceeding to assess the damages; and to permit the jury to pass upon them in this case, is to expose the defendant to the danger of having two judgments rendered against him for one cause of action.
It is urged that this mistake was corrected by the learned judge in his charge to the jury, and ought therefore to be disregarded. He said, speaking of the pending proceeding to *475assess damages done to tlie plaintiff:: “ He will then get full damages for the entire injury to the value of his property. So the plaintiff is entitled, without any question, to damages in the amount you may think this trespass cost him up to the 81st of October. That much he must have under the law.” This is a correct statement of the law; and if the incompetent evidence covered by the first assignment of error had not been before the jury, it would have been an adequate instruction. But the incompetent evidence was before them, and there was no other proof of injury except that resulting from the mere breach of an uninclosed close. It was not withdrawn from them, nor were they cautioned to leave it out of consideration in making up the damages. They were instructed simply to “ give the plaintiff compensation for the trespass upon his rights up to October 81st, whatever you think that is. All after that will be tried in the other case, how much this pipe has damaged him, and cannot be tried in this, after October. For the injury up to that time you must give compensation.” As there was no proof of other items of damage done, and no instruction turning the attention of the jury away from the incompetent testimony before them, the jurors would naturally understand that they were at liberty to consider it, and from it estimate the injury sustained by the plaintiff. Their attention should have been drawn to the trespass, and its immediate consequences, as distinguished from the injury resulting from the appropriation of a part of the plaintiff’s lot, and the consequent depreciation in value of the part not appropriated.
The instruction on the subject of exemplary damages was both indefinite and inadequate. The court presented this subject to the jury in this manner: “ The learned counsel for defendant contends that this was nothing but an ordinary going upon a man’s land, cutting a ditch, and putting a pipe down, without any intention to do any harm, or without doing more than ordinary damage; that there was no wantonness.” He then stated the position of the plaintiff thus: “ On the other hand, the learned counsel for plaintiff contends that the evidence shows maliciousness, grossness; that the outrage was gross; and he puts it on this ground, and it is for you to judge.” But jurors ought to dispose of questions submitted to them upon the evidence, and in accordance with certain general rules that *476should govern them in its application. What evidence was there in this case to show malice on the part of this gas company or its officers ? Did a mistake of the laborers engaged in laying the pipe show malice on the part of their employer ? Was the gas company to be punished for the trespass of its employees, committed without its knowledge, and against its instructions, by imposing smart money on it ? The jury were left with no more definite information on this subject than they could gather from the direction, “it is for you to judge.” Unless there was evidence showing the purpose of this company to oppress or injure the plaintiff unnecessarily, or at the least showing culpable inattention and neglect in the conduct of its affairs, resulting in an unnecessary injury to the plaintiff, there was no reason for imposing exemplary damages. The ends of justice are fully met, under ordinary circumstances, when the employer makes full compensation for the trespass of his employee, without subjecting him to punishment for his employee’s malice or cruelty.
The judgment is reversed, and a venire facias de novo awarded.