Murray v. Frick

277 Pa. 190 | Pa. | 1923

Opinion by

Me. Justice Walling,

On September 3,1919, the plaintiff, Melba Irene Murray, while on Grant Street, Pittsburgh, was seriously injured by a window screen which fell from the nineteenth floor of the Frick building. When properly adjusted the screen was held in place by four iron pins; one at each upper corner, two and a fourth inches long, extended down from the screen through a bracket attached to the window frame, while near each comer at the bottom a pin, one and a fourth inches long, extended from the window sill up through a hole in the frame of the screen. The room was in the possession of a tenant who had installed the screens on a model approved by H. C. Frick, owner of the building, whose executors are the defendants. It was Frick’s duty to clean the windows and to do so the screens were temporarily removed, which had been done by his employees a week before the accident, and it is plaintiff’s contention that the screen fell because negligently replaced by them.- When properly in place there was a clearance of at least one-fourth of an inch between the window and the screen, so the opening and closing of the former had no effect upon the latter, yet plaintiff’s evidence is that as an employee of the tenant was closing the window the screen fell without being touched by him, or without having been disturbed since replaced by the window cleaners. The evidence justifies the conclusion that the screen could not have fallen as it did if properly in place. Furthermore, the accident happened in the afternoon at closing time, and when the room was opened the next morning the screens on two of its four other windows were found without being engaged to the pins at the bottom. The defendants submitted no testimony, but made a request for binding instructions, which was refused, and this appeal by them is from judgment entered on a verdict for plaintiff.

There is nothing in the record calling for a reversal. While we have not applied the rule of res ipsa loquitur to an injury sustained by a pedestrian from an object falling from a building (Joyce v. Black, 226 Pa. 408), yet in such case very slight evidence is sufficient to meet the burden of proof. The ease is not unlike an injury to a pedestrian by the fall of a trolley pole where the quantum of proof necessary to establish the negligence of the electric street railway company need be very slight and may consist of circumstances: Dougherty v. Phila. R. T. Co., 257 Pa. 118, and cases there cited. Here, the fact that the screen fell, without being touched by any one, which it could not have done if properly in place, is evidence that it was not so in place, which, together with the fact that Frick’s employees were the last to handle the screen and responsible for its replacement, necessitated the submission of the case to the jury. The condition in which other like screens in the same room were found, while not essential to plaintiff’s case, was competent to illustrate the physical facts and show how the accident might have happened by the screen in question being attached at the top only so that a jostle caused its fall. The evidence tends to show the screen was left so out of its proper alignment as to touch the sash of the window and that raising the latter caused the fall of the former; but that does not excuse the defendants. One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of a third party may have contributed to the final result. In the language of Judge Cooley, quoted with approval in Wood v. Penna. R. R., 177 Pa. 306, 310, and also in Howarth v. Adams Express Co., 269 Pa. 280, 282, “If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some others, and result, and does actually result, in injury, through the intervention of other causes not wrongful, the injury shall be referred to the wrongful cause, passing through those which were innocent.”

Plaintiff’s offer to prove the condition in which the other screens were found the next morning, was, as stated, “for the purpose of showing the physical possibility of screens of this type being poised as we think this one was without the pins being engaged, and for the purpose, second, of showing by circumstantial evidence that this particular screen was poised in that position, by the window cleaners at the time that it fell.” This was objected to, “as incompetent, irrelevant and immaterial, generally and particularly, for the reason that the facts that counsel propose to prove, even if they were competent, are too far removed from the time of this accident.” This objection being overruled, the witness testified, as above stated, that two of the remaining screens were not engaged at the bottom. The evidence was competent for the purpose of showing the physical possibility of the screen in question, which was of the same type as the others, being poised, although not engaged or fastened at the bottom and as the objections thereto were merely general they were properly overruled. See 22 C. J. 744, 753. Had the defendant desired to limit the evidence to that feature of the case, the objection should have so stated. Where only a general objection is made to an offer of evidence, its admission is not error if competent for any purpose: Cullum v. Wagstaff, 48 Pa. 300; Benner v. Hauser, et al., 11 S. & R. 352; 10 R. C. L., p. 929; 1 Wigmore on Evidence, section 18, p. 57, note. “A general objection will not avail if any part of the offer is good”: Moschzisker’s Trial by Jury, section 201; Laubach v. Laubach, 73 Pa. 387, 393. Here there was no special objection made to the competency of the evidence of the condition of the other screens as a circumstance tending to show the condition of the one in question, hence, that specific objection was waived: Messmore v. Morrison, 172 Pa. 300; Moschzisker’s Trial by Jury, sections 208-210. And on appeal the party will be limited to the specific objections made at the trial: Benner v. Fire Assn. of Phila., 229 Pa. 75; Danley v. Danley, 179 Pa. 170; Roebling’s Sons Co. v. Am. A. & C. Co., 231 Pa. 261, 271. In other words, we cannot consider other reasons for the rejection of evidence than those stated at the trial: Brown v. Kittanning, 259 Pa. 267. As the accident happened when the office was being closed for the day and the screens in the windows were found as described on opening the next morning, there was no force in the point that the time was too remote (see Chitwood v. Phila. & R. Ry. Co., 266 Pa. 435), and this was the only specific objection made to plaintiff’s offer. The weight of authority throughout the United States is that the words ‘incompetent, irrelevant, and immaterial’ do not set forth specific grounds of objection; they are almost universally classed as mere general objections: see 26 R. C. L. 1048, 1050 and note; 38 Cyc. 1386; see also Com. v. Eyler, 217 Pa. 512, 515.

Even after the evidence as to the condition of the other screens was admitted, the defendant might have requested the trial judge to limit its effect to the first purpose for which it was offered (Pegg v. Warford, 7 Md. 582, 607; 1 Wigmore on Evidence, section 15, p. 42, note), but as it was admitted and no request made to limit its effect, it was before the jury as evidence generally and a proper matter for comment by the trial judge. We so hold in the matter of hearsay evidence in Luckett v. Reighard, 248 Pa. 24, 28, where Mr. Justice Mestrezat, speaking for the court, says, “The testimony was before the court and the jury, and it was not only proper, but it was the duty of the court to direct the jury’s attention to it. We have sustained the court’s refusal to strike it from the record [because the application was made too late], and it was, therefore, competent testimony and to be considered by the jury.”

The judgment is affirmed.