238 Pa. 614 | Pa. | 1913
Opinion by
The plaintiff claimed damages for a change of grade affecting certain real estate owned by her in the defendant borough; she recovered a verdict and the defendant has appealed. It appeared at the trial that a grade had been established for the sidewalk in front of this property in 1889 and that the plaintiff had conformed thereto; further, that the borough had by an ordinance passed July 15,1903, ordered another change, which was made in 1905. The plaintiff’s claim was for damages arising from this latter change, but up to the time of trial she had not made her sidewalk conform to the grade thereby established.
The first specification of error complains of the admission of testimony concerning the prior change of grade. The appellant contends that the real question before the jury was the effect of the grade made pursuant to the ordinance of 1903, and that the prior change had no bearing thereon. However this may be, we do not see how the rulings complained of could have prejudiced the defense. When the testimony was tendered counsel for the plaintiff stated that its only purpose was to make plain to the jury the whole situation (particularly to show how it happened that the sidewalk in front of the plaintiff’s buildings was high at one corner), and that the testimony was not offered for the purpose of claiming any damages caused by changes in the grade made prior to 1905, adding, “the claim for damages is restricted to the second change of grade, which occurred in 1905”; moreover, the court in its charge to the jury fully explained the admission of the testimony and expressly told them that in considering the question of damages they should start with the condition of the property just prior to the change in 1905, and that they might not give any damages for the condition brought about by the alteration of the grade in 1889. The jury viewed the property, and there is a strong probability
The second and third specifications of error refer to the answers given by the trial judge in affirming defendant’s third and fourth points; the appellant contends that they should have been affirmed without qualification. Both of these points made reference to “The grade of the curb as established by the borough in its ordinance duly passed in 1903,” and in the answers the court explained to the jury that if they found as a fact that the curb was set by the borough at a grade different from that established by the ordinance then they should take the actual grade at which the curb was set. In view of the fact that there was a conflict in the testimony given by the engineers and surveyors called by the plaintiff and the defendant respectively as to whether or not the curb had been laid on the exact grade provided in the ordinance, the explanation made by the court qualifying the affirmance of the points in question was appropriate and proper. The assignments are overruled.
The fourth specification of error goes to a ruling of the trial judge admitting certain testimony of a witness on behalf of the plaintiff concerning the lines of a survey. The assignment states the questions leading up to the defendant’s objection, the form of the objection and the ruling of the court, but it fails to embody the testimony given thereunder; hence, it is defective, for it is impossible to determine from the assignment itself whether or not harmful error was committed. (See Rule 28 and Sopherstein v. Bertels, 178 Pa. 401, 408; Raymond v. Schoonover, 181 Pa. 352, 357; Com. v. Heidler, 191 Pa. 375; Merritt v. Poli, 236 Pa. 170, 175). While we will not further discuss or formally pass upon this assignment, we may say that we have examined the
The fifth and sixth specifications of error complain of the refusal to grant exceptions nunc pro tunc to certain rulings upon the evidence. In an opinion filed by the learned court below disposing of this matter it is correctly stated, “The stenographer’s notes do not show an exception, the petition is not positive that it was asked and the answer filed is that the request was not made. The only conclusion on this state of the record is that an exception was not asked.” Under the circumstances, we cannot say that there was error in refusing to grant the exceptions nunc pro tunc after trial, verdict and judgment. The office of an exception to a ruling upon the admission or rejection of testimony is an important one. When the trial judge rules upon an objection and the ruling is not excepted to, he has a right to assume that it is acquiesced in, and thereafter to guide the trial accordingly. If counsel does not assent to the ruling he should promptly ask for an exception; this serves to put the trial judge upon immediate notice that his ruling is not acquiesced in, as well as to secure the right to a future review: Merritt v. Poli, supra, 175. The Act of May 11, 1911, P. L. 279, does not attempt to change the practice in this respect; thereunder counsel is obliged to request an exception immediately succeeding a ruling, and this must be done in the presence and hearing of the trial judge. It is not necessary, for the purposes of the present case, to decide more concerning the act in question. The court below has found that no exceptions were requested at the time of trial, and that is conclusive. These assignments are overruled.
The judgment is affirmed. ,
