180 Pa. 227 | Pa. | 1897
Opinion by
This appeal is from the refusal of the court to take off the judgment of nonsuit. In its legal effect, a compulsory non-suit is substantially the same as a demurrer to the evidence, except that the trial judge cannot give judgment for the defendant. It thus impliedly admits all the facts which the jury might have inferred from the testimony: Maynes v. Atwater, 88 Pa. 496; Miller v. Bealor, 100 Pa. 583. If there be any evidence beyond a mere scintilla, however slight, from which the jury may draw an inference favorable to the plaintiff, the case should be submitted; and if it inadvertently happens to be withdrawn from the jury by judgment of nonsuit, the latter should be taken off by the trial court.
In this case, the plaintiff claimed to recover for injury to the crops “in the bed of the street andón the borders ” outside the street lines, and for “ loss of the use of the ground.” At the commencement of the trial it was agreed by counsel that the date of the ordinance under which Wolf and other streets were opened was October 23,1889, and that the bond of the city was filed January 18, 1890, but neither appears to have been given in evidence.
Plaintiff having been called as a witness to sustain his claim.
Judgment reversed and a procedendo awarded.