Fornof v. Wilkinsburg Borough

Citations

• 238 Pa. 614
• 86 A. 494
• 1913 Pa. LEXIS 1022

Syllabus

<p>* Road law — Change of grade — Evidence.</p> <p>1. In an action against a borough to recover damages resulting from a change of grade of a street, it appeared that the borough had ordered two changes of grade, but that the plaintiff was suing for damages arising only from the second change. The plaintiff offered evidence relating to the first change of grade, but only for the purpose, as stated by counsel, to make plain to the jury the whole situation, and not for the purpose of claiming damages for the first change of grade. The court in its charge explained the purpose of the admission of the testimony and expressly told the jury that in considering the question of damages they should confine their attention to the condition of the property immediately prior to the second change of grade. The jury viewed the property. Held, that the admission of evidence as to the first change of grade was not error.</p> <p>2. In such a proceeding, where the evidence is conflicting as to whether the curb set by the borough was at a grade different from that established by the ordinance, it is not error for the court to instruct the jury that in determining the damages they might consider the actual grade at which the curb was set, if they found that it was in fact different from that established by the ordinance.</p> <p>Appeals — Assignments of error — Evidence—Exceptions nunc pro tunc.</p> <p>3. An assignment of error to the admission of testimony is defective if it fails to embody the testimony admitted under the objection and ruling of the court set out in the assignment.</p> <p>Practice C. P. — Exceptions—Failure to note — Petition to grant exceptions nunc pro tunc — Act of May 11,1911, P. L. 219.</p> <p>4. A refusal by the trial judge to grant exceptions nunc pro tunc to certain rulings upon evidence will not be reversed, where the court below has found as a fact that no exceptions were requested at the time of the trial. The Act of May 11, 1911, P. L. 279, does not change