145 Pa. 399 | Pennsylvania Court of Common Pleas, Clarion County | 1891
Opinion,
The defendant made no request for a binding instruction by the court to render a verdict in his favor, and therefore the third assignment of error cannot be sustained. The refusal of the court to enter a compulsory nonsuit cannot be assigned for error, and therefore the second assignment is not sustained. This leaves only the first assignment to be considered. It was for the refusal of the court below to strike out the testimony of the witness Daniel McKenna.
The witness had testified to having seen a son of the defendant Steiner taking away from the Wray mill some of the lumber m question. Other witnesses had testified to acts of ■intervention by Steiner in the sawing of the lumber by the
The foregoing testimony being in the case, the defendant’s counsel moved to strike out the testimony of the witness Mc-Kenna. The court declined to do this, because it was some evidence upon the question as to what Steiner had to do with the logs. We can see no error in this. The testimony was relevant to the main question. It was entirely competent, and taken in connection with other evidence, it was fairly for the consideration of the jury. If Steiner’s son took away some of the lumber from the mill, it was some evidence that he did it for his father. If he did not, he could be called by the defendant to disprove any authority from him to take away the lumber. A question of fact only was raised by the testimony. The fact had some bearing upon the main question, and therefore it was proper to be considered by the jury. Of course, standing alone without other evidence, it would have been very
Judgment affirmed.