Pittsburgh Forge & Iron Co. v. Dravo Contracting Co.

Citations

• 272 Pa. 118
• 116 A. 147
• 1922 Pa. LEXIS 785

Syllabus

<p>Negligence — Statement — Evidence — Allegata and probata — Amendment — Surprise—Waiver—Continuance — Appeal — Proximate cause — Fire—Oil on river — Spreading fire by wind — Intervening independent agency — Things to be naturally anticipated— Act of Cod or vis inertia.</p> <p>1. In an action to recover damages for the destruction of plaintiff’s wharf by fire, where the statement of claim charges negligence in permitting a burning board to be placed in a river covered with oil which was “being carried thence down the river and along and past plaintiff’s property,” and that defendant knew or should have known that the current of the river was carrying the oil down and along plaintiff’s property, it is error for the trial judge, after admitting evidence, against objection, that the oil before the fire extended from defendant’s operation to and past plaintiff’s wharf, to instruct the jury to disregard such evidence as not in accordance with the statement of claim.</p> <p>2. The ruling of the judge admitting the evidence was equivalent to an amendment of the statement; and, if defendant was not prepared to meet the issue in that form, it should have pleaded surprise, and asked a continuance; it is too late to raise that objection on appeal.</p> <p>8. In such ease, the fire resulting from the throwing of the burning board on the oil, the result must have been foreseen not only to be possible but probable and natural, to make defendant liable.</p> <p>4. An instruction that no recovery could be had unless the current carried the fire to the plaintiff’s wharf and such a result was naturally to be foreseen, is erroneous in view of evidence that the body of oil was continuous between the point of defendant’s operation and plaintiff’s wharf.</p> <p>5. It was also error to charge, in the absence of testimony of unusual wind conditions, that defendant was not bound to anticipate the action of the air currents, and if the fire was so conveyed, this would constitute an intervenin