Foehr v. New York Short Line Railroad

Citations

• 40 Pa. Super. 7
• 1909 Pa. Super. LEXIS 558

Syllabus

<p>Negligence — Trespass—Obstruction of private road — Bridge—Railroad —Evidence—Question for jury.</p> <p>1. In an action of trespass against a railroad company to recover for the obstruction of a private road by the alleged construction thereon of a permanent pier of a railroad bridge, the case is for the jury where the testimony of the plaintiff, although somewhat uncertain, was in effect that such a pier encroached on his right of way, and this testimony is corroborated by another witness who testified more clearly to the same fact. In such a case a verdict and judgment for the plaintiff will be sustained although the appellate court may deem that the evidence adduced by the defendant was more satisfactory and convincing than that adduced by the plaintiff.</p> <p>Practice, C. P. — Trial—Pleading—Review—Negligence—Obstruction of private road.</p> <p>2. After a trial judge has submitted a question to a jury 'from the standpoint from which both parties to the issue manifestly have tried it, the one against whom the verdict is rendered should not- ordinarily be permitted on appeal to question the correctness of the submission, except in cases where manifest injustice results from it.</p> <p>3. Where a case is tried by both parties on the theory that a particular fact is a material and relevant fact, although not mentioned in the statement of claim, the appellate court will not reverse a judgment on a verdict in favor of one of the parties, because the trial judge submitted to the jury the evidence as to such fact.</p> <p>4. Where a landowner claims in an action of trespass against a railroad company damages for injuries to a private road, and at the trial introduces evidence not only as to temporary obstruction of the road during the construction of a bridge, but also evidence to the effect that a pier of the bridge was built upon a portion of the right of way, evidence as to the construction of the pier is a relevant fact, although not mentioned in the statement of