Borough of Easton v. Neff

• Court: Pennsylvania Supreme Court
• Writing for the Court: Clark
• Citation: Borough of Easton v. Neff, 102 Pa. 474, 48 Am.Rep. 213 (Pa. 1883)
• Decision Date: 01 October 1883
• Parties: Corporation of the Borough of Easton <I>versus</I> Neff.

102 Pa. 474

Corporation of the Borough of Easton versus Neff.

Supreme Court of Pennsylvania.

March 5, 1883.

October 1, 1883.

March 5th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Northampton county: Of January Term 1882, No. 334.

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Frank Reeder, for the plaintiff in error.—It was error to leave to the jury the question of the necessity of the crossing. That is a matter solely for the municipal authorities, and not being within the province of a jury was calculated to lead them from the consideration of the true issue.

B. F. Fackenthall, for the defendant in error.—The questions of negligence and contributory negligence were properly left to the jury. As to the second assignment, even if the question of the necessity of the crossing was irrelevant, it was the statement of an abstract proposition of law upon a supposed state of facts, by which the defendant was not prejudiced. Such an error is no ground of reversal. If the judge below erroneously affirms or denies a point which is immaterial this court never reverses. The plaintiff in error must show just how the erroneous answer or proposition misled the jury, and when and how it injured them. He must show that the verdict would have been different if the wrong construction had not been given.

Mr. Justice CLARK delivered the opinion of the court, October 1st 1883.

A refusal to enter a compulsory non-suit is not assignable for error; that has been the uniform ruling of this court, since the passage of the Act of 11th March 1836, relating to the district courts, and of the general Act of 11th March 1875, which has application to all the courts of common pleas, throughout the Commonwealth: Bavington v. Pittsburgh & Steubenville R. R. Co., 34 Penn. St. 358; Pownall v. Steele, 52 Penn. St. 446; U. S. Tel. Co. v. Wenger, 55 Penn. St. 262; Mobley v. Bruner 59 Penn. St. 481; Lehman v. Kellerman, 65 Penn. St. 489; Ballentine v. White, 77 Penn. St. 20. There is no provision, in either of these Acts, for removal of the record into this court, by writ of error for revision or review, except where a judgment of non-suit is entered, and a motion to set that judgment aside has been refused. The remedy of the defendant was, by prayer to the court for instruction to the jury, upon the insufficiency of the plaintiff's evidence; he may always prepare the particular point, on which instruction is desired, and the court is bound to give it. The first assignment of error, therefore, does not properly present the question, sought to be raised under it, for the consideration of this court.

We are of opinion, however, that the second assignment is sustained. We cannot agree with the learned court, that it was a question for the jury "to consider, whether there was any necessity for the construction of the crossing," at the place where the injury was received. The question of its necessity was for the municipality of the borough of Easton. Her corporate officers had the undoubted right, under the law to ordain and establish such sewers, pavements, gutters, &c., as they should deem necessary. They had the right to regulate these pavements, gutters, &c., and to fix their heights, grades, widths, slopes and the forms thereof. They had all needful jurisdiction over this subject matter. It was not a question, therefore, properly referable to the jury, whether the crossing or the gutters therein were necessary, either to the owners of the lots of ground fronting thereon, for the enjoyment thereof, or to the borough in general for purpose of drainage or otherwise; the question of their necessity having been adjudicated in their construction by the corporation. If a person, by mere accident, and without fault of any one, were killed in a public street, it would be a most unwise and unjust rule of law, which could hold the municipality responsible for the injury, because in the judgment of...