Carter v. Henderson & Co.

Citations

• 224 Pa. 319
• 73 A. 554
• 1909 Pa. LEXIS 786

Syllabus

<p>Pleading — Statement—Allegata and probata — Appliance—Pilaster— Negligence.</p> <p>1. Where in. an action against an employer the negligence charged is failure to provide safe and suitable appliances, and a defective pilaster in a building is averred as the immediate cause of the accident, if the defendant makes no objection to the evidence offered in support of the averment as to the defective condition of the pilaster as an appliance, he may not be heard at the end of the trial to ask for binding instructions on the ground that the allegata and probata do not agree.</p> <p>Negligence — Evidence—Charge—Introduction of improper theory 'into charge.</p> <p>2. Where in a negligence case the plaintiff's testimony supports one theory as to the cause of the accident, while the defendant's testimony supports an entirely different theory, it is reversible error for the trial judge to introduce into his charge a third and an entirely independent theory of his own, which is not supported by any evidence in the case.</p> <p>Negligence — Evidence—Independent contractor.</p> <p>3. Where in an accident case the defendant alleges that the improper appliance which was alleged to have caused the accident had been built by a subcontractor, and this allegation is based on evidence wholly in parol, the question as to whether there was an independent contract is for the jury although the evidence is uncontradicted, since it involves the credibility of witnesses.</p>