Clark v. Millett

• Decision Date: 26 February 1914
• Docket Number: 30-1913
• Parties: Clark, Appellant, v. Millett
• Court: Pennsylvania Superior Court

57 Pa.Super. 287

Clark, Appellant, v. Millett

No. 30-1913

Superior Court of Pennsylvania

February 26, 1914

Argued October 10, 1913

Appeal by plaintiff, from order of C.P. No. 3, Phila. Co.-1910, No 4,782, refusing to take off nonsuit in case of Susan Clark v A. B. Millett and C. F. Millett.

Trespass to recover damages for personal injuries. Before Davis, J.

The facts are stated in the opinion of the Superior Court.

Error assigned was order refusing to take off nonsuit.

R. S Shaw, with him Thomas Ridgway, for appellant.

John C Gilpin, with him Graham & Gilfillan, for appellee.

Before Rice, P. J., Orlady, Head, Porter, Henderson, Kephart and Trexler, JJ.

OPINION

HEAD, J.

At the conclusion of the plaintiff's case the learned trial judge entered a compulsory non-suit which he afterwards 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 builders." That is to say, they were engaged in the business of building dwelling houses for sale. Two such houses in a row under construction were about completed. The defendants desired to have them promptly and thoroughly cleaned to exhibit them to a prospective purchaser. They employed the plaintiff and another laboring woman to do the cleaning. They took these women to the houses, showed them through the various rooms and directed what parts of the buildings were to be cleaned. The plaintiff was taken to a rear room on the second floor, the windows of which had been considerably splashed with paint and were otherwise soiled. These windows opened on the roof of a porch of some character and this roof was so covered with tar paper that the nature of its construction could not be observed by the eye. While directing the cleaning of these windows, the plaintiff called the attention of the defendant owner to the fact that the paint spots which he desired removed were all on the outside of the window. He replied, using the language of the...