Hoskins v. Peoples

48 Pa. Super. 306, 1911 Pa. Super. LEXIS 377

Opinion

Per Curiam,

The questions sought to be raised by the fifth, sixth, seventh and eighth assignments of error were considered and adjudicated in the determination of the appeal from the judgment entered upon the verdict in the former trial: Hoskins v. Peoples, 42 Pa. Superior Ct. 611. Nothing developed on the second trial, or suggested in the argument of the present appeal, requires different disposition of the questions or further discussion of them than is contained in the opinion of the court as expressed by Judge Head. Therefore, these assignments are overruled.

The new question raised is as to variance. The statement of claim, after setting forth the relation of the defendants to the work and their duty, averred that an employee, engaged in cleaning the street, in order to facilitate his work negligently and carelessly and without regard to safety of persons lawfully using the same, turned on the water at a certain fire plug in such “manner as to permit the water therefrom to be hurled in á great volume and with great force and noise across the said street and to flow .... in a wide and torrential stream covering the whole of said street to the depth of several inches, and partly covering the sidewalk.” This was followed by the averment that “the sudden appearance and approach of so large a volume of water, and the noise made by the emission from the fire plug, frightened the said horse and caused him to break loose.” Witnesses in describing the occurrence were permitted, against the defendants’ objection, to testify that refuse on the street, consisting of paper, match boxes, sticks and dirt, was gathered up by the volume and whirled around on its surface. See first and fourth assignments. Under the aver-ments of the statement, it surely was competent to show the volume and force of the water, and the testimony referred to was admissible for that purpose, if for no other.

The question raised by the second and third assignments is somewhat different. As we said on the former appeal; as the defendants insisted by their points for charge and as the learned trial judge instructed the jury, the doing of the work of cleaning by flushing the street in the usual and ordinary manner was not per se negligence. Therefore, evidence that the mode of cleaning was not the usual and ordinary mode under such circumstances as were disclosed on the trial, was clearly relevant to the allegation of negligent cleaning, if not absolutely essential to a prima facie case for the plaintiff. Amongst the circumstances to be considered in this inquiry was the fact that the street was flushed without first being swept, and if that was unusual and extraordinary, it was pertinent to the question whether the cleaning was done negligently. But it is strenuously urged that the admission of the evidence enabled the jury to find a cause, of the horse’s fright not alleged in the statement. This, we think, involves a too narrow construction of the statement. By fair and reasonable intendment, the statement charged that it was the sudden appearance of the water that was swept over the street “in a wide and torrential stream,” that partly caused the fright. It would be the extreme of refinement to hold that evidence that the water carried with it the refuse that lay upon the street, was not admissible. As well might it be declared that evidence that the water was discolored by the dirt and refuse on the street, would be inadmissible. None of the eases cited by appellants’ counsel would sustain the objection to the admission of the evidence in question, and we think it quite clear that it is not sustained by sound principle.

All the assignments of error are overruled, and the judgment is affirmed.