Kopka v. Bell Telephone Co. of Pa.

Opinion Concurring in Part and Dissenting in Part by

Mr. Justice Bell :

The majority concede that defendant Bell Telephone Company was not guilty of negligence, and that the plaintiff cannot recover on the theory of negligence which was the theory on which the case was actually and admittedly tried and passed upon in the Court below. Nevertheless, they sustain plaintiff’s verdict on an entirely different theory, viz., a theory of absolute liability arising out of a non-negligent trespass to land. *455In order to reach this startling conclusion, the majority utterly ignore a principle which this…