Rowland v. Philadelphia

Citations

• 202 Pa. 50
• 51 A. 589
• 1902 Pa. LEXIS 461

Syllabus

<p>Negligence — Joint tortfeasors — Pleading—Practice, O. P.</p> <p>Where an action is brought against two or more joint tort feasors, and the evidence fails to show a joint act, the plaintiff may amend his statement of claim, and the defendant may thereupon plead surprise and ask for a continuance.</p> <p>Where, under such conditions of the proof, a nonsuit is entered in favor of one of the defendants, and the other without objection permits the trial to go on against himself alone, he will be held to have waived his right to raise the question as to the variance between the allegations and the proof, and such question will not be considered by the appellate court. Wiest v. Election Traction Co., 200 Pa. 148, explained.</p> <p>Negligence — Municipalities—Stake in crossing.</p> <p>In an action by a woman against a city to recover damages for personal injuries, the case is for the jury, and a judgment and a verdict for the plaintiff will be sustained where the evidence for the plaintiff tends to show that the plaintiff in going over a public crossing fell over a stake which was described as being about two inches square and protruding above the ground more than six inches; that the stake had been set by the city surveyor to show the line of a sewer; that the contractor had finished his work and left the street several days prior to the accident; and that under his , contract with the city he was prohibited from moving stakes until authorized to do so.</p>