Irwin v. Leuten Brick Co.

Citations

• 59 Pa. Super. 150
• 1915 Pa. Super. LEXIS 37

Syllabus

<p>Practice, C. P. — Trial—Charge—Reading to jury portion of statement of claim, — Variance.</p> <p>1. A trial judge commits no error in reading to the jury a portion of the plaintiff’s statement of claim where it appears that he merely read what he might very well have stated from his own knowledge as the legal basis of the plaintiff’s claim.</p> <p>2. Where a defendant in a negligence case makes no objection at the trial to a variance between the allegata and the probata, he cannot after a trial on the merits and a verdict against him, set up such an objection as a plea to secure an absolute reversal or a new trial.</p> <p>Negligence — Unguarded machinery — Pleading—Act of May 2, 1905, P. L. 352 — Contibutory negligence — Proximate cause.</p> <p>3. The Act of May 2, 1905, P. L. 352, does not need to be specially pleaded or offered in evidence to ground the right of an injured party to redress for damages for failure to properly guard machinery or comply with the provisions of the statute.</p> <p>'4. Where an employee is engaged in cleaning machinery in a proper place and in a proper manner under the instructions of his superintendent, and in some way the instrument with which he is working, is jerked from his hand, and his hand is thrown back over his head and strikes unguarded and exposed moving gear wheels, the proximate cause of the accident is the negligent exposure of the wheels, and not the prior slip or accidental movement by which the injured man’s hand was thrown back.</p>