Dissenting Opinion by
Mr. Justice Musmanno:Mrs. Angelina Beal, on December 24, 1942, fell into an irregularity on the surface of Limekiln Pile in Edge-hill, Philadelphia County, and rolled over an embankment to the railroad tracks of the defendant company some 40 feet below.
Practically everyone connected with this case has referred to the irregularity into which Mrs. Beal fell as a hole. The photographs in evidence plainly show that it was not a hole. A hole has a certain configuration, and, no matter how lopsided or distorted, it must have a circumference. The outer edges of a hole, starting away from any given point must eventually meet *55again. Otherwise, the depression involved is not a hole bnt a ditch, gully or ravine, depending on its size and the terrain involved, Generically it would be a declivity.
If the hollow space into which Mrs. Beal stepped was a hole, it is more difficult for her to establish a case against the defendant company than if it was something else. The responsibility for a hole could be charged to the State Highway Department for admittedly it had jurisdiction over the surface of the highway. The responsibility for a ditch or gully could more logically lead to the property of the defendant company. If there is a physical bond between the sunken area on Limekiln Pike and the property of the defendant railroad underneath the highway, a causal relationship is established upon which the charge of negligence may be founded. Photograph P-3 shows that bond.
The majority opinion quotes three lines from the testimony of the plaintiff witness Joseph Trunk and from this fragment of the record concludes that the “erosion began on land owned by the State.” I do not so read the record. The most that can be said about the three quoted lines from Trunk’s testimony is that they present a conclusion of the witness. Trunk said the gully looked “as though it formed at the bottom first.” This does not contradict anything which he said before. He claimed through his entire testimony that the gully formed at the bottom of the embankment: “Q. I think I asked you something yesterday about the erosion in this bank. Where in the bank did you first notice the erosion start? A. At the bottom of the bank? Q. Yes. A. I would say approximately 30, 35 feet from the bridge east. Q. What was the course of this erosion? How did it progress? A. Well, it started going up from the bottom of the bank, up until where this hole is. It just kept on washing away at the bottom of the bank.” (emphasis supplied).
*56Upon cross-examination lie maintained the same objective proposition from which he never deviated, namely, that the disintegration of the land first occurred on the defendant’s property: “Q. You do not want to tell this Court and jury that you went down onto the railroad’s property when this gully first formed and took a look to see where it started? A. Yes, sir. Q. You went down on the railroad property? A. Yes, sir.” Photograph P-3 shows an enormous cavity at the bottom of the slope next to the railroad tracks. From this point a ravine 2 to 4 feet deep led to the top of the embankment.
And from this ditch or cavity at the bottom of the embankment (on railroad property) the defendant carried away dirt in such quantities that it had to be moved in railroad cars.
The witness Peter D’Angelo also testified to the same fact: “Q. I show you again Plaintiffs’ Exhibit 3 and ask you what is the formation of this section in here at the bottom of the slope? A. Well, that is more of rocks and dirt right there. It is a solid — mostly stone, rock there. Q. What is it down in this section (indicating) ? A. That is where your rock would come off the main or something. Q. Indicating the point at the end of the line? A. Yes.” [line marked on photograph]
With the railroad company removing support at the bottom of the embankment it was inevitable that eventually the land would cave in somewhere at the top of the embankment. If one removes bricks from the bottom of a wall, a path of weakness will at once form to the summit, with the climaxing of a rupture or break at the top of the wall.
D’Angelo testified further: “Q. You spoke of this ravine and you have marked it on this picture, (indicating Plaintiffs’ Exhibit 3). Do you know what happened to the dirt that was formerly in that ravine? A. I seen the railroad clean that ravine out, hauling the *57dirt away with their cars and putting it in their gondolas, I think they call them. Q. How long had you seen that? A. I seen it at least three or four times.”
Charged with the maintenance of the embankment, as it was, a duty devolved upon the railroad company to fill in the ravine, not dig it deeper. With each emptying of the ravine, a larger and deeper channel formed for the water and earth tumbling down the bank; and with 'this came a greater dislodgment of earth from the surface and the eventual breaking away of the lip of the road at the point where Mrs. Beal fell. The sequence of events which brought about the sloughing off of the roadway is chargeable to the defendant company as definitely as if it had used picks and shovels to cut away the pedestrian walk which Mrs. Beal and other wayfarers had the right to use.
The responsibility of the railroad company for this accident is clear. The question of lateral support does not lie in any twilight zone of jurisprudence. No one may pull the earth out from under his neighbor, nor can he use his land in such manner as to destroy the natural pillars which support the common highways.
In the case of Rasmus v. Pennsylvania Railroad Company, 164 Pa. Superior Ct. 635, 638, 67 A. 2d 660, the railroad company had made a cut into a hillside in widening its trackway, but had constructed no fence, rail or barrier to protect from harm pedestrians using the street bordering its right of way. In holding the railroad company liable for damages incurred by a minor plaintiff who fell over the embankment caused by the railroad excavations, the Superior Court said: “As to the railroad the rule is well settled, and of general application, that a property owner who makes an excavation on his premises so near to an existing highway as to render the use of the road unsafe, will be liable to a traveler who, exercising due care for his safety, nevertheless falls into it and is injured.”
*58In Pollock v. Pgh., Bessemer & Lake Erie R. R. Co., 275 Pa. 467, 119 A. 547, the plaintiff, a passenger in an automobile, was injured when the public road on which he was travelling, gave way, taking car and its occupants down a steep cut running parallel with the road, defendant having removed the lateral support from the highway. When the railroad company made the excavation some twenty years before the accident, it had left a bank or shoulder 5 feet in width. Through the action of the elements this gradually disintegrated, causing the land to slide away until when the accident happened the protection had receded to a point too close to if not within the highway limits.
In affirming the verdict rendered in behalf of the plaintiff the Supreme Court said: “The doctrine of lateral support is a very old one, and has uniformly been held to be the right of an owner to have his land supported and protected in its natural condition by the land of the ad joiner . . . When the railroad excavated alongside the highway and removed its necessary support there was a violation of the right for which the defendant was liable if damages resulted.”
• Whether the negligence occurred at the time of the original excavation or later is not material so long as there toas negligence. The Supreme Court said further in that case: “At the time this excavation was made it was possible for defendant to so construct its work that no damage would result, or the stratification of earth might have been such as, in its judgment, to sustain the highway.”
In the case at bar the defendant was charged with knowledge of the stratification of the earth in the slope supporting the highway; and it was for the jury to say whether its action in continuing to remove earth and stone from the embankment did or did not, in conjunction with the natural forces of erosion, bring about a disintegration of the highway to the point that it broke, *59causing a rent in the surface, into which Mrs. Beal was precipitated to her injury.
A judgment n.o.v. cannot be supported in this case without a repudiation of McCarthy v. Ference, 358 Pa. 485, 58 A. 2d 49, decided in 1948 by a unanimous decision of this Court. In that case the plaintiff was injured when a bus in which he was riding was struck by rocks falling from a hillside overlooking the highway over which the bus was travelling. The highway had been constructed by the defendant Jones & Laughlin Steel Company and the Pittsburgh & Lake Erie R. R. Co., and then, being dedicated to public use, was taken over by the State Highway Department for maintenance. The defendant Jones & Laughlin Steel Company owned the hillside involved in the accident and had become aware that for four years prior to the accident numerous landslides and falls of rock had invaded the highway. As stated by the Court, the plaintiff claimed that: “. . . since the construction of the road changed the natural slope of the hillside which had theretofore been stable and in repose, there was thereby created a duty on the part of the Land Company and the Steel Corporation, which, in dedicating the 50 foot roadAvay, had retained ownership, possession, dominion and control over the slope, of subsequent watchful inspection and proper maintenance of their land abutting on the highway, and that, by their negligence in failing to conduct such inspections and to undertake the measures the necessity of which such inspections would undoubtedly have disclosed, they became liable for the injuries caused by the accident which resulted.”
It is a similar charge in this case, namely, if the railroad company had taken proper precautions to prevent the extension of the erosion and washing away of soil on its own land, the highway would not have weakened and the accident would not have occurred.
*60There, as here, the defendant company argued that no responsibility rested upon it since the highway on which the accident happened was under the exclusive jurisdiction of the Commonwealth. But this Court, with all the force of precedent and reason, declared: “The duty of a municipality or of the Commonwealth itself to provide for the safety of the travelers on a public road is something wholly distinct from the duty of the adjacent landowners not to impair such safety by negligence in the maintenance of their own lands beyond the highway limits where such lands had been artificially changed from their natural state.”
Said the Court further: “It must once more be pointed out that the liability presently asserted by plaintiff is based upon negligence, not in the original location and construction of the highway, but in the failure of appellants as abutting landowners to perform their duty of properly inspecting and maintaining their property in such condition as not to be likely to cause danger to those traveling on the highway.”
Exactly the same situation is true in the case at bar, namely, the failure of the Beading Company, abutting landowner to perform its duty of inspecting and maintaining its property in condition so that it would not likely cause danger to those traveling on the highway. The Beading Company’s own engineer testified to the danger caused by erosion when adjacent land is not protected: “Q. Of course as an engineer you are familiar with the nature of these banks and that they will from time to time erode and wash away, are you not? A. That is right. Q. You know that sometimes in washing away, if you do not protect the adjacent land, it sometimes washes away part of that? A. It does, yes, sir.”
But over and above the responsibility of the railroad company landowner to provide lateral support for the *61highway, the defendant company is responsible on the fundamental charge of negligence, namely, the absence of care under the circumstances. In the case of McGrew v. Stone, 53 Pa. 436, 442, decided as far back as 1866, this Court said: “. . . when we are engaged in an act which the surrounding circumstances indicate may be dangerous to others or their interests, and when the event whose concurrence is necessary to make our act injurious, is one which we can readily see may occur under these circumstances, and unite with the act to inflict an injury, we are culpable if we do not take all the care which prudent circumspection would suggest to avoid the injury.” Also, “the general rule is, that a man is answerable for the consequences of a fault which are natural and probable, and might therefore be foreseen by ordinary forecast.”
Could the railroad company have foreseen what occurred in this case? Only rejection of natural phenomena could answer that question in the negative. When the railroad company cut through the hillside it performed an operation which of itself affected the stratification of the surrounding terrain. As a ship cannot pass through water without temporarily disarranging ocean currents, levels and depths, so a steam shovel cannot eat its way through land without affecting the molecular order of what remains- — -particularly the facing of the earth which has just been sliced or gouged. Then, with the vibrations of heavy trains thundering through the artificial gorge, it is not unreasonable to foresee that the stratification of the earth will be further discomposed. It is because of this inevitable discomposition that sliced hillsides along highways are so often girded with heavy masonry.
The large aperture in the bank next to the railroad tracks, clearly observable in plaintiff’s exhibit P-3, certainly was not caused by what occurred at the *62top of the embankment. It was an effect caused by either the original excavation, the movement of the trains, natural erosion, weather conditions or from a combination of any number of these causes with possible other undisclosed causes. Regardless of origin, however, the undisputed fact remains that the slope at this point discharged so much dirt and rock that the railroad company had to carry it away on freight cars. Joseph Trunk, who is employed as a police officer and resided close to the scene of the accident for 20 or 25 years, and Peter D’Angelo, who also lived in the vicinity, both testified that they had seen the railroad company carry away dirt from this gash in the lower slope many times, and as recent as a month and a half before the accident.
The defendant company also knew that from this cavity a ravine led directly to the crest of the embankment, and it was accordingly charged with notice of the breaking away of the highway at the top terminus of the ravine. That such a situation presented a definite peril to persons travelling on the highway was something that came within the range of ordinary forecast, as pointed out in McGrew v. Stone, supra, and this knowledge imposed on the defendant company a responsibility to take action to avert the peril. This action it failed to take.
In Restatement, Torts, Sec. 365, it is said that “A possessor of land is subject to liability for bodily harm caused to others outside the land by the disrepair of a structure or other artificial condition thereon, if the exercise of reasonable care by the possessor ... (a) would have disclosed the disrepair and the unreasonable risk involved therein, and (b) would have made it reasonably safe by repair or otherwise.” In comment a to this section it is said that “The word ‘disrepair’ indicates that the condition of the structure has de*63teriorated since its creation. It includes dilapidations caused by the usual force of nature . . .”
In McCarthy v. Ference, supra, which, in my opinion, I repeat, must be overruled before this judgment n.o.v. can stand, Justice Horace Stern enumerated many cases in which recovery was affirmed by this Court where the possessor of land was held liable even though the accident occurred not on his land but on adjoining land. Some of them are as follows: Where the owner of a lot on the slope of a hill allowed dirt to fall therefrom upon land situated further down the slope; where lower property owners on a steep slope were damaged by the action of defendants in making a fill on their lands further up the slope, which caused a slide and consequent injury to plaintiffs’ lands and buildings; where an owner allowed a loose piece of concrete to fall from a wall and injure a person working on the adjoining land, it being held that the defendant was obliged to consider the fact that stone may deteriorate and become a menace to human safety, and therefore was under the obligation to have the wall inspected at intervals; where, by reason of filling operations, earth and stone were allowed to slip down from the fence of a steep hill to plaintiff’s property at the base thereof; where dirt, stones and other debris from excavations on defendant’s land fell or were washed down upon plaintiff’s lower-lying land; where a person passing on the street was injured when a fence which had been erected on the ground of the abutting owner and allowed to become dilapidated and in disrepair was blown on him by a high wind; where a person on the street was struck by a piece of tin and wood blown by a storm from a sign located a few feet from the highway.
In all these cases the injured person was victimized by events culminating on land not owned by the de*64fendant but originating on Ms own land, as is true in the case at bar.
The majority opinion states that the fact that the State constructed a wall at the top of the bank after the accident confirms the conclusion that the erosion began on land owned by the State. In the first place, whether introduced at the trial with or without objection, what follows an accident is irrelevant and never to be considered as evidence of pre-accident negligence. In the second place, there is nothing in the record to substantiate the statement that the defect was cured by the stone wall. Clarence F. Hess called by the defendant testified as follows: “Q. This photograph shows that something has been built at that point. What is that, Mr. Hess? A. A stone abutment has been built, I presume to hold the embankment up. Q. Who built that? A. I do not know. Q. What is the purpose of that abutment? A. I presume to hold the embankment up.”
Even if we presume that the stone abutment will hold the embankment up at that point, there is no assurance that the highway may not suffer at some other point if the defendant company does not properly care for and maintain the sustaining slopes on its own land.
As I view this whole case a judgment n.o.v. is unsupportable on the law or on the facts. Since the defendant company, by pressing for judgment n.o.v. in effect agrees with plaintiffs counsel that a new trial is unnecessary, I would, therefore, reverse the lower Court’s order for a new trial, and order judgment be entered on the jury’s verdict.