404 Pa. 239 | Pa. | 1961
Opinion by
This is an appeal from the judgment for the defendant entered following refusal of the court below to remove a compulsory nonsuit in an action for personal injuries.
The evidence shows that when plaintiff reached the cafe he found Mrs. William Gekas behind the bar; she was the wife of one of the defendants and she opened the cafe each morning. Plaintiff asked her where the new display was to go and she pointed to a place on the wall over a door. He couldn’t reach the spot and asked her if she had a ladder. She said it was out back, took him there, and pointed to a ladder leaning against the wall of a small porch. He brought the ladder in and set it up. It was an old “A” ladder, with steps up one side and hinged center braces that locked when opened to prevent the ladder from snapping shut; it admittedly belonged to the defendants. Pláintiff said that it seemed solid and that he saw nothing wrong with it; he was satisfied that it was “perfectly safe”. Up he went and down he came when, as he was two-thirds of the way to the top the center braces broke and the ladder spread-eagled under him. He rode it down and broke his arm.
Mr. Christ Gekas, alleged in paragraph 6 of the amended complaint as the actor on defendants’ behalf, is nowhere mentioned in the testimony except as follows : “Q. . . . Did you have any conversation, any dealings at all with Christ Gekas? A. No, I didn’t.”
In Aland v. P-G Publishing Co., 337 Pa. 259 (1940), 10 A. 2d 5, we said: “Despite the increasing informality of modern practice, there has been no substantial departure from the salutary rule that pleadings and proof must conform sufficiently to enable a defendant to meet at trial the same cause of action disclosed by the statement of claim. As we said in Penna. R. R. Co. v. Pittsburgh, 335 Pa. 449 (p. 458) : ‘The rule against a variance between allegata and probata is not arbitrary, but is based upon the sound reason that a defendant should not be taken by surprise at trial by being called upon to defend against matters of which he had no notice in the pleadings, or to a different cause of action.’ The wrong proved must be .the wrong alleged, not merely another wrong in the same legal category. See Mc-
It is unnecessary to discuss the questions of exclusive control or negligence, but on the latter point see Novak v. Neff, 399 Pa. 193 (1960), 159 A. 2d 707.
The judgment is affirmed.