Bastian v. City of Philadelphia

Opinion by Mr. Chief Justice Sterrett, This appeal is from the refusal of the court to take off the judgment of nonsuit. In its legal effect, a compulsory non-suit is substantially the same as a demurrer to the evidence, except that the trial judge cannot give judgment for the defendant. It thus impliedly admits all the facts which the jury might have inferred from the testimony: Maynes v. Atwater, 88 Pa. 496; Miller v. Bealor, 100 Pa. 583. If there be any evidence beyond a mere scintilla, however slight, from which the jury may draw an inference favorable to the plaintiff, the case should be submitted; and if it inadvertently happens to be withdrawn from the jury by judgment of nonsuit, the latter should be taken off by the trial court. In this case, the plaintiff claimed to recover for injury to the crops “in the bed of the street andón the borders ” outside the street lines, and for “ loss of the use of the ground.” At the commencement of the trial it was agreed by counsel that the date of the ordinance under which Wolf and other streets were opened was October 23,1889, and that the bond of the city was filed January 18, 1890, but neither appears to have been given in evidence. Plaintiff having been called as a witness to sustain his claim. [230] testified, inter alia, that he was the lessee of eight or nine acres of land in Philadelphia through which said Wolf and other streets were opened in July, 1891. The ground, within the lines of said streets, as well as that adjoining, was used by him for trucking and market gardening; and at the time of the opening, part of it was occupied by hotbed sashes which were filled by him with plants, etc., in the fall of 1890. While his testimony is very meager as to details, he clearly and distinctly stated that the city “ tore the fence down and shot the dirt over from the street,” covering the crops therewith and destroying them. He also testified that the “ lease commenced March 1, 1885, and ran from year to year,” and that he had no notice of the intended opening of the streets. At this stage of the trial, without waiting for the plaintiff to further testify or offer further evidence and rest his case, the learned trial judge, of his own motion, ordered the nonsuit which the court afterwards refused to take off. So far as the record shows, this action of the court was wholly unwarranted. Even in the view of the case that appears to have been entertained by the learned trial judge, the evidence, as presented to us, did not warrant a compulsory nonsuit. On the contrary, if it be true, as testified by plaintiff (and for the purposes of this case we must assume it to be so), that the crops bordering on the street, — outside the lines thereof — were covered with dirt and destroyed, and the use of the ground thereby partially lost to the plaintiff, he was clearly entitled to go to the jury, even on the meager evidence that was before them at that early stage of the trial. Neither the ordinance, nor the bond given by the city, the dates of which were admitted, can possibly contain anything that would justify the commission of such acts outside the lines of the street. Meager as the testimony is, on account of the unwarranted action of the learned judge in summarily terminating the trial before the plaintiff had either time or opportunity of developing his case, there is quite enough in it to carry the case to the jury and justify them in finding in his favor. In any view that can be reasonably taken of the case on the evidence as presented to us the judgment must be reversed, and the record remitted for the purpose of a full and fair trial. It may be possible that the trial court had before it facts or admissions (not shown by the [231] record) which justified the action complained of. However that may be, in disposing of the case, we must be guided solely by what appears on the record. Judgment reversed and a procedendo awarded.