DocketNumber: Appeal, No. 30
Citation Numbers: 57 Pa. Super. 287, 1914 Pa. Super. LEXIS 191
Judges: Head, Henderson, Kephart, Orlady, Porter, Rice, Trexler
Filed Date: 2/26/1914
Status: Precedential
Modified Date: 10/19/2024
Opinion by
At the conclusion of the plaintiff’s case the learned trial judge entered a compulsory non-suit which he after-wards refused to take off. This action constitutes the error assigned.
As the record is presented to us, we do not think the action of the learned judge below can be justified on the ground that the act of negligence on the part of the defendants, if any, established by the testimony, was not precisely that set forth in the declaration. No objection was made to the admission of the evidence as we have it on the ground that it was not in harmony with the pleadings. Had such objection been made and sustained, the plaintiff, could have moved to amend her declaration so as to make its allegations conform with the proof offered. The defendants having waived any such objection, and having chosen to abide the result of the testimony actually offered and admitted, it was not the function of the learned trial judge to raise this objection of his own motion and assign it as a reason for refusing to take off the compulsory nonsuit.
The plaintiff’s case is in a narrow compass. The defendants were what they themselves call “operative
Was it her duty, as a reasonably prudent person, to have placed no reliance on the direction or suggestion of her employer and to have made a personal investigation of the safety of the roof to carry her before venturing upon it? Is it a fair inference of fact, from the nature of the defendants’ business, that they knew or ought to have known the nature and character of the construction to which they had directed the attention of the plaintiff as a place from which she could readily remove the paint from the outside of the win
We are of opinion therefore the learned trial judge fell into error in withdrawing the case from the jury and that he should have submitted the questions of fact indicated under proper instructions. The assignment of error is sustained.
The judgment is reversed and a venire facias de novo awarded.