159 Pa. 442 | Pa. | 1894
Opinion by
If the inquiry, contemplated by the offers recited in the first three specifications of error, were any longer an open question in this state, the rejected testimony should have been received; but, unfortunately, as it appears to me, the court is of opinion that our decisions. construing article XYI, section 8 of the constitution, have closed the door against such evidence in cases of the class to which this belongs: Lippincott v. Railroad Co., 116 Pa. 472 ; Railroad v. Marchant, 119 Pa. 541; Jones v. Railroad Co., 151 Pa. 31; Penna. Co. v. Railroad Co., 151 Pa. 334. It was not proposed to show that defendant company’s structure rests upon or overhangs any part of plaintiff’s land, either within or outside the lines of the street. It is therefore unnecessary to further notice either of said specifications.
The fourth and last specification presents a different question, to wit:» whether the learned court erred in refusing to take off the judgment of nonsuit?
It is well settled that such refusal is tantamount to a judgment for defendant on demurrer to plaintiff’s evidence, except that, in case of reversal, the record must be remitted with a procedendo, instead of giving judgment for plaintiff here: Finch v. Conrade, 154 Pa. 328. Hence it follows that, in considering the testimony in such cases, plaintiff is entitled to the benefit of every fact and inference of fact that might have been fairly found by the jury or drawn bjr them from the evidence before them. Testing the case at bar by that rule, we have no doubt the judgment of non pros should have been taken off. Without undertaking to summarize the testimony on which plaintiffs relied, or to refer specially to any portion of it, we think it is quite sufficient to have warranted the jury in finding in their favor. It tended to prove, among other things, that defendant company, chartered under the act of 1874, constructed
Judgment reversed and a procedendo awarded.