Opinion by
Me. Justice Schaefer,
This case can be disposed of without elaboration. The action is trespass to recover damages due to injuries received by plaintiff consequent upon the collapse of a coal shed in which he and others employed by a railroad company were placing coal cars on a trestle which the shed covered, It was alleged in the statement of claim that the defendants had negligently permitted the lumber of which the shed was constructed to become rotten, worn and unsound and the nails which
held the lumber in place to become rusted and corroded and the shed to become unsafe and that this unsafe condition was visible, self-evident and notorious. There was no evidence produced to show that the shed was visibly, self-evidently and notoriously unsafe and no testimony to show what caused the structure to collapse. On trial defendant at the close of plaintiff’s case moved for a nonsuit upon the specified ground, inter alia, that the proofs did not support the allegations of the statement of claim. The court refused the nonsuit and at the end of their case defendants presented a point for binding instructions which the trial judge declined and a verdict was rendered in plaintiff’s favor; subsequently judgment was entered for defendants non obstante veredicto on the grounds that the proofs did not support the negligence alleged, but showed, if anything, by way of negligence, that there was some latent defect in the building, and failed utterly to show what caused the building to fall.
It is the contention of plaintiff prosecuting this appeal that defendants, having proceeded with their proofs, following the refusal of the nonsuit, thereby waived the advantage they otherwise could have maintained due to the failure of allegata and probata to agree. This contention cannot be upheld. On the motion for non-suit the specific reason therefor was the lack of accord between proofs and allegations. For that reason the motion for nonsuit should have prevailed. When it was refused defendants had no other course to pursue save to offer their testimony and at its close to ask for binding instructions, as they did. When such a course is pursued, in the absence of evidence to the contrary the request for instructions will be assumed to cover the same points comprehended by defendants’ prior motion for a nonsuit. They were not required to forego their right to make defense under the penalty of abandoning the position they had assumed on the nonsuit motion if they did advance their proofs,. Rules for the conduct
of trials which do not further a just determination of causes have no reason for existence and should not be established or adhered to under modern conditions. It would not promote the better administration of justice to hold the highly technical rule that if the defendant does not object to the admissibility of proofs not in line with the allegations (see Irwin v. Leuten Brick Co., 59 Pa. Superior Ct. 150) he is debarred thereafter from raising the question of the divergence between allegations and proofs. The rule should be that the defendant may raise this question at any time on the trial, provided it is specifically raised so that the plaintiff may have an opportunity to amend his pleadings. We, therefore, declare the rule to be that the plaintiff may raise the question of the disagreement between probata and allegata (1) when the testimony not covered by the pleadings is offered; (2) by a motion for a nonsuit, assigning the divergence as the reason; (3) by a motion for binding instructions in which the reason is assigned. If, however, no objection is made to the testimony, and the specific reason is not assigned on the motion for a nonsuit or in the point for binding instructions, then the defendant, having taken his chance, may not thereafter raise the question. We think this rule is not out of line with any of our own pronouncements or of those of the Superior Court. In Clark v. Millett, 57 Pa. Superior Ct. 287, the nonsuit was entered on general grounds and the court later set up a variance as one of the reasons to sustain its refusal to remove the nonsuit; it thus appeared that the plaintiff had no opportunity to amend. The same is true of Shaffer v. Bahr, 57 Pa. Superior Ct. 48, and Lederman v. Lazarus, 80 Pa. Superior Ct. 602. The raising of the question of a variance at some point during the trial is required in order to permit the plaintiff to make an offer to amend. If it appears that no amendment can be allowed to cover the case actually proved, the court may properly direct a verdict for defendant
on the ground of a variance: Harris v. Blitzstein, 84 Pa. Superior Ct. 498. As before pointed out, in the case at bar the specific reason was assigned in the motion for the nonsuit. The plaintiff then had notice that required him to elect either to amend or to stand on the statement as it was. Not having moved to amend and having stood on the proofs as they were, his contentions must-be adjudicated in the light of the rule that probata and allegata must be in agreement: Shenango Limestone Co. v. Buffalo, Rochester & Pittsburgh Ry. Co., 262 Pa. 446; National Bank v. Lake Erie Asphalt Block Co., 233 Pa. 421; Leh v. Delaware, Lackawanna & Western R. R. Co., 30 Pa. Superior Ct. 396. It is true we will not consider a question of variance between proof and pleadings where it was not raised in the court below (Saxman v. McCormick, 278 Pa. 268; Boyd v. Houghton & Co., 269 Pa. 273) but here the question was raised below, and, this being so, the variance can be availed of on appeal.
The situation at the end of the plaintiff’s case is correctly stated in the opinion of the learned court below when he says “the plaintiff and his five witnesses who were with him at the time of the accident stated positively that although they had been in this shed and upon the trestle frequently not one of them had ever seen anything to cause them to believe the shed to be in a dangerous condition, and not one of them testified that he had seen a rusted or corroded nail or a rotten or decayed timber prior to the fall of the shed...... The four witnesses called by the plaintiff who were not present when the shed collapsed......but who inspected the timber and nails of the building after its collapse, simply say that the nails were rusted and corroded and some of the timbers had dry rot. Not one of them even suggested that the collapse was the result of either of these alleged defects.”
Under these circumstances the case is within the principle of such cases as Mardo v. Valley Smokeless Coal
Co., 279 Pa. 209; Direnzo v. Pittsburgh Bridge & Iron Works, 265 Pa. 561; Laing v. Remington Arms Co., 264 Pa. 130; Sack v. Ralston, 220 Pa. 216, which hold that an unexplained falling of an object is not sufficient to render the defendant owner liable for negligence. If in point of fact the fall of the shed was due to the decayed condition of the lumber described by the four witnesses who examined it after the fall, then, having in mind the testimony of the other witnesses, the case comes down to one of a “latent defect” and is governed by such decisions as Philadelphia Ritz Carlton Co. v. Phila., 282 Pa. 301; Travers v. Delaware County, 280 Pa. 335; Sheets v. Sunbury & Northumberland Electric Ry Co., 237 Pa. 153, particularly the last named case.
Altogether this case is strikingly analogous to the situation presented in Stewart v. DeNoon, 220 Pa.
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Opinion by
Me. Justice Schaefer,
This case can be disposed of without elaboration. The action is trespass to recover damages due to injuries received by plaintiff consequent upon the collapse of a coal shed in which he and others employed by a railroad company were placing coal cars on a trestle which the shed covered, It was alleged in the statement of claim that the defendants had negligently permitted the lumber of which the shed was constructed to become rotten, worn and unsound and the nails which
held the lumber in place to become rusted and corroded and the shed to become unsafe and that this unsafe condition was visible, self-evident and notorious. There was no evidence produced to show that the shed was visibly, self-evidently and notoriously unsafe and no testimony to show what caused the structure to collapse. On trial defendant at the close of plaintiff’s case moved for a nonsuit upon the specified ground, inter alia, that the proofs did not support the allegations of the statement of claim. The court refused the nonsuit and at the end of their case defendants presented a point for binding instructions which the trial judge declined and a verdict was rendered in plaintiff’s favor; subsequently judgment was entered for defendants non obstante veredicto on the grounds that the proofs did not support the negligence alleged, but showed, if anything, by way of negligence, that there was some latent defect in the building, and failed utterly to show what caused the building to fall.
It is the contention of plaintiff prosecuting this appeal that defendants, having proceeded with their proofs, following the refusal of the nonsuit, thereby waived the advantage they otherwise could have maintained due to the failure of allegata and probata to agree. This contention cannot be upheld. On the motion for non-suit the specific reason therefor was the lack of accord between proofs and allegations. For that reason the motion for nonsuit should have prevailed. When it was refused defendants had no other course to pursue save to offer their testimony and at its close to ask for binding instructions, as they did. When such a course is pursued, in the absence of evidence to the contrary the request for instructions will be assumed to cover the same points comprehended by defendants’ prior motion for a nonsuit. They were not required to forego their right to make defense under the penalty of abandoning the position they had assumed on the nonsuit motion if they did advance their proofs,. Rules for the conduct
of trials which do not further a just determination of causes have no reason for existence and should not be established or adhered to under modern conditions. It would not promote the better administration of justice to hold the highly technical rule that if the defendant does not object to the admissibility of proofs not in line with the allegations (see Irwin v. Leuten Brick Co., 59 Pa. Superior Ct. 150) he is debarred thereafter from raising the question of the divergence between allegations and proofs. The rule should be that the defendant may raise this question at any time on the trial, provided it is specifically raised so that the plaintiff may have an opportunity to amend his pleadings. We, therefore, declare the rule to be that the plaintiff may raise the question of the disagreement between probata and allegata (1) when the testimony not covered by the pleadings is offered; (2) by a motion for a nonsuit, assigning the divergence as the reason; (3) by a motion for binding instructions in which the reason is assigned. If, however, no objection is made to the testimony, and the specific reason is not assigned on the motion for a nonsuit or in the point for binding instructions, then the defendant, having taken his chance, may not thereafter raise the question. We think this rule is not out of line with any of our own pronouncements or of those of the Superior Court. In Clark v. Millett, 57 Pa. Superior Ct. 287, the nonsuit was entered on general grounds and the court later set up a variance as one of the reasons to sustain its refusal to remove the nonsuit; it thus appeared that the plaintiff had no opportunity to amend. The same is true of Shaffer v. Bahr, 57 Pa. Superior Ct. 48, and Lederman v. Lazarus, 80 Pa. Superior Ct. 602. The raising of the question of a variance at some point during the trial is required in order to permit the plaintiff to make an offer to amend. If it appears that no amendment can be allowed to cover the case actually proved, the court may properly direct a verdict for defendant
on the ground of a variance: Harris v. Blitzstein, 84 Pa. Superior Ct. 498. As before pointed out, in the case at bar the specific reason was assigned in the motion for the nonsuit. The plaintiff then had notice that required him to elect either to amend or to stand on the statement as it was. Not having moved to amend and having stood on the proofs as they were, his contentions must-be adjudicated in the light of the rule that probata and allegata must be in agreement: Shenango Limestone Co. v. Buffalo, Rochester & Pittsburgh Ry. Co., 262 Pa. 446; National Bank v. Lake Erie Asphalt Block Co., 233 Pa. 421; Leh v. Delaware, Lackawanna & Western R. R. Co., 30 Pa. Superior Ct. 396. It is true we will not consider a question of variance between proof and pleadings where it was not raised in the court below (Saxman v. McCormick, 278 Pa. 268; Boyd v. Houghton & Co., 269 Pa. 273) but here the question was raised below, and, this being so, the variance can be availed of on appeal.
The situation at the end of the plaintiff’s case is correctly stated in the opinion of the learned court below when he says “the plaintiff and his five witnesses who were with him at the time of the accident stated positively that although they had been in this shed and upon the trestle frequently not one of them had ever seen anything to cause them to believe the shed to be in a dangerous condition, and not one of them testified that he had seen a rusted or corroded nail or a rotten or decayed timber prior to the fall of the shed...... The four witnesses called by the plaintiff who were not present when the shed collapsed......but who inspected the timber and nails of the building after its collapse, simply say that the nails were rusted and corroded and some of the timbers had dry rot. Not one of them even suggested that the collapse was the result of either of these alleged defects.”
Under these circumstances the case is within the principle of such cases as Mardo v. Valley Smokeless Coal
Co., 279 Pa. 209; Direnzo v. Pittsburgh Bridge & Iron Works, 265 Pa. 561; Laing v. Remington Arms Co., 264 Pa. 130; Sack v. Ralston, 220 Pa. 216, which hold that an unexplained falling of an object is not sufficient to render the defendant owner liable for negligence. If in point of fact the fall of the shed was due to the decayed condition of the lumber described by the four witnesses who examined it after the fall, then, having in mind the testimony of the other witnesses, the case comes down to one of a “latent defect” and is governed by such decisions as Philadelphia Ritz Carlton Co. v. Phila., 282 Pa. 301; Travers v. Delaware County, 280 Pa. 335; Sheets v. Sunbury & Northumberland Electric Ry Co., 237 Pa. 153, particularly the last named case.
Altogether this case is strikingly analogous to the situation presented in Stewart v. DeNoon, 220 Pa. 154, where we reversed a judgment in favor of the plaintiff on the grounds, first, that the plaintiff had not proven the case on which he had declared, and, second, that he did not establish what had caused the fire which brought about the damage. We there said: “As long as the case of plaintiffs was being presented the defendants could not know that it would not be made out as pleaded, and only when plaintiffs rested was it known that it had not been so made out, and a nonsuit was promptly asked for, Tor the reason that the plaintiffs have not given any evidence of the negligence alleged in the declaration or statement. The evidence does not show that the fire originated from an explosion in the cellar.’ Plaintiffs made no offer to amend their statement. If it had been amended the case would have been continued, on. defendants’ motion, if they were surprised, to a subsequent term, and in the interval they would have had an opportunity to prepare to meet the new charge of negligence against them. But we need not discuss this further, for, even if the statement should be regarded as having been amended, charging
the fire as the direct result of the negligence of the defendants, there is nothing in the evidence from which the jury conld have determined how it originated.”
The judgment is affirmed.