
    Bement, Miles & Co. v. George W. Ruch, Appellant, and the City of Philadelphia.
    Argued Oct. 11, 1899.
    Appeal, No. 140, Oct. T., 1899, by George W. Ruch, defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1897, No. 307, on verdict for plaintiff.
    Before Rice, P. J., Beaver, Orlad y, Smith, W. W. Porter, W. D. Porter and Beeber, JJ.
    Affirmed.
    Opinion by Rice, P. J.
    Trespass. Before Sulzberger, J.
    It appears from the record that plaintiffs declared in trespass against defendants for injuries to premises northeast corner of Twenty-first and Callowhill streets, Philadelphia, alleged to have been caused by the careless and negligent performance of the work of excavating a tunnel for a sewer in the bed of Callowhill street in front of plaintiffs’ premises.
    
      A't the trial the court admitted as evidence on behalf of plaintiff the following testimony of Samuel T. Wagner.
    [“ Q. Please state whether in your opinion this work could have been done — the blasting could have been so done — as not to break out the windows of the building or disturb the machines within. A. It would have been possible to have prevented injury by reducing the charges to such an amount as to have caused very small execution in the rock and to have made the shock very small. Of course, such a proceeding would have been with an ultimate end to doing no execution on the rock at all.”] [1]
    Defendant submitted, inter alia, certain points, which points and answers are as follows:
    [5. There is no evidence of negligence on the part of the defendant in the construction of the said sewer. Answer: I decline to affirm that point.] [2]
    [6. The verdict in this case must be for the defendant. Answer : I decline that point.] [3]
    Verdict and judgment for plaintiff for #300 as to George W. Ruch and as to the city of Philadelphia, judgment for defendant. Defendant George W. Ruch appealed.
    
      Frrors assigned were (1) to ruling on evidence, reciting same. (2, 3) answers to defendant’s points, reciting points and answers.
    
      Charles H. Fdmunds, for appellant.
    
      Frank P. Prichard, for appellees.
    January 17, 1900:
   Opinion by

Rice, P. J.,

We do not think it was error to permit the witness to be asked the question specified in the first assignment. As we said in Fisher v. Ruch, ante, p. 240, it was a relevant preliminary inquiry, although it might not be the conclusive test of the defendants’ liability. We are also of opinion that there was ample evidence to warrant the submission of the question of negligence to the jury. As we have discussed that matter in the case above cited it will not be necessary to go over the same ground again. The case was submitted with instructions of which the defendant has no reason to complain, and does not complain. We find no error in the record, therefore the assignments of error are overruled and the judgment is affirmed.  