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 Court has iterated over and over again: . . we will not review a case on a theory other than that upon which it was tried and passed upon in the court below: Saxman v. McCormick, 278 Pa. 268, 273, 122 A. 296, and cases there cited; Morrett v. Fire Association of Philadelphia, 265 Pa. 9, 11-12, 108 A. 171, and cases there cited; Quinter v. Quinter, 261 Pa. 195, 198, 104 A. 580, and cases there cited; Rotograph Company v. Cressman, 41 Pa. Superior Ct. 14, 17-18. An appellate court does not sit to review questions that were neither raised, tried nor considered in the trial court: Huffman Estate (No. 3), 349 Pa. 59, 62, 36 A. 2d 640; Henry v. Zurflieh, 203 Pa. 440, 451, 53 A. 243”: Fisher v. Brick, 358 Pa. 260, 264, 56 A. 2d 213.
The facts further emphasize how especially unjustifiable it is to ignore this principle in this case.
Plaintiff sued the Bell Telephone Company in trespass and claimed damages for injury to his land and for injury to his person which injuries resulted from the entry of Sedwick (who was subsequently joined as additional defendant by Bell Telephone Company) on his property and the digging of an unprotected ditch into which the plaintiff fell. Defendants then filed preliminary objections as to the cause of action for damages to the land; and the Court with the consent of the plaintiff entered an order striking from the complaint “the cause of action for damages to the land”, thus formally withdrawing plaintiff’s claim for damages to his real estate. Plaintiff admittedly tried his case solely on the theory that the defendants were negligent and their negligence caused his injuries; both defendants presented their defense on lack of negligence on their part and on the contributory negligence of the plaintiff; the trial judge charged the jury on the theory that negligence and contributory negligence were the only *456issues in the case (outside of the amount of damages); the jury’s verdict was based upon the questions or issues of negligence and contributory negligence. In this Court not only in their original respective paper books, but also in their original oral arguments, the case was presented solely upon the question or issue of whether one or both of the defendants were guilty of negligence and whether plaintiff was guilty of contributory negligence.
During the oral reargument one of the Justices advanced the idea that plaintiff could and should have sued and recovered upon the theory of trespass quare clausum fregit. Four times counsel for plaintiff was asked whether he sued in an action or based his claim for damages upon the theory, of trespass quare clausum fregit. Four times counsel for plaintiff stated flatly and unequivocally that he did not sue or claim damages under trespass quare clausum fregit but sued for and claimed damages solely upon the theory of the defendant’s negligence. Counsel for plaintiff went further and reminded this Court that he had formally abandoned, prior to trial, any and all claim for injury or damage to plaintiff’s land. Moreover, counsel for plaintiff in his printed brief on reargument said, “.. . it seems clear that since our suit was an action in trespass based upon negligence from the beginning, that there was no attempt, nor would it be possible to regard the verdict which ice obtained as having been based on trespass jiuare clausum fregit”* To pile Pelion upon Ossa, counsel for each defendant then agreed with plaintiff that the case had been presented, tried, defended, and the jury charged, solely upon the basis or theory or issue of negligence and contributory negligence. The verdict having necessarily been rendered by the jury solely upon that basis, one can imagine the astonish*457ment of all counsel in the case and the trial Judge and the jury when they read the majority opinion telling them how they must have and therefore actually did try and decide this case upon an entirely different basis or theory. Does that seem fair or wise or just?
Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A. 2d 817, relied on by the majority to support their position, is clearly distinguishable. In that case plaintiffs pleaded and recovered a verdict of $1,200. for damage to their house caused by defendant’s blasting. Plaintiffs pleaded (a) absolute liability for damage resulting from the blasting, as well as (b) negligent blasting, and presented, evidence to support each theory. Plaintiff’s evidence was sufficient to sustain the verdict on the theory of absolute liability, but insufficient to prove negligence. This Court in its opinion said: “The defendant-appellant contends that, as plaintiffs tried to prove negligence, they may not recover without proof of it. But the case is much broader; plaintiffs also alleged absolute liability, and produced evidence from 'which the jury found that defendant’s blasting damaged their dtoelling; if, in their effort to recover, they went further than was necessary by attempting to prove negligence, as a basis for recovery, the failure to carry that excess of burden does not disqualify them from relying on the principle of absolute liability, the evidence being consistent with that contention . . .” That ease is very different from the instant case, which was pleaded, presented tried and decided as we have seen, solely on the theory of negligence and not on the double-barreled alternative theory of absolute liability for consequential personal injuries arising out of a non-negligent trespass to land, and negligence. A closer analogy and one which is controlling is Kramer v. Pittsburgh Coal Co., 341 Pa. 379, 19 A. 2d 362. Speaking through Mr. Chief Justice Schaffer, this Court said (pages 381, 382) : “In the statement of claim plain*458tiff’s right of recovery is based entirely upon defendant’s negligent operation of a cleaner ....
“. . . ‘At the oral argument [of the motion] plaintiff for the first time, took the position that the case should have been submitted to the jury on the doctrine of absolute liability.’ The opinion points out that it was then too late for plaintiff to raise this question, even if there were merit in the contention advanced. The point could not be raised for the first time in the motion for a new trial; much less could it be initiated on the oral argument of that motion: Penna. R. R. Co. v. Pittsburgh, 335 Pa. 449, 464, 6 A. 2d 907; Weiskircher v. Connelly, 256 Pa. 387, 389, 100 A. 965. Plaintiff, having stated and tried his case solely as one of negligence, could not expect to have it passed upon as one of nuisance [*] generally, irrespective of negligence.”
There is still another reason why plaintiff’s verdict cannot be sustained.
An intentional entry upon the land of another without invitation or consent constitutes a trespass. The trespasser’s liability is absolute and it is immaterial whether the trespass was with or without fault or negligence, or that it occurred under an innocent mistake of fact or under a mistaken belief of law. Cf. Watson v. Rynd, 76 Pa. 59; Chase v. Clearfield Lumber Co., 209 Pa. 422 ; 58 A. 813; Restatement, Torts, §§163, 164. A person who authorizes or directs another to commit an act which constitutes a trespass to another’s land is likewise liable for the trespass even though the actual trespasser be an agent or independent contractor: McCloskey v. Powell, 123 Pa. 62, 73, 74, 16 A. 420; 138 Pa. 383, 397, 21 A. 148; Allen v. Willard, 57 Pa. 374, 381.
*459Damages, nominal or otherwise, depending npon the circumstances, may be recovered in an action of trespass quare clausum fregit; but because liability imposes sucb a severe and heavy burden upon one who may be an innocent trespasser, the damages recoverable have heretofore been limited in Pennsylvania (a) to injury to the land; and (b) to direct, immediate and proximate injuries resulting from the trespass. I believe that this doctrine has been reaffirmed and restated by the majority opinion. But the majority go one step further and rule for the first time in Pennsylvania that the possessor of land may also recover in an action of trespass quare clausum fregit for all indirect and consequential injuries to the person which result from the trespass. With this new or extended doctrine I disagree.
After months of painstaking research, the majority have failed to find one Pennsylvania authority in the entire history of the Commonwealth to support the third branch of this doctrine. While this is not conclusive, it is, especially when we consider the ability and ingenuity of the Pennsylvania Bar, persuasive that trespass quare clausum fregit never in its active lifetime possessed the attributes with which the majority now invest it. The farthest Pennsylvania Courts have ever gone in this respect is the allowance of damages for timber cutting (a direct and immediate injury), and the allowance by a divided Superior Court of damages for the immediate injury to a possessor of land from a trespassing cow, and the allowance of damages resulting from the extremely hazardous occupation of blasting.
Absolute liability for damages to land resulting from a non-negiigent trespass quare clausum fregit is an ancient and technical concept, which arose from the ancient Anglo-Saxon emphasis on property rights *460and the ancient theory that a man’s home was his castle and inviolable. Absolute liability is contrary to the modern philosophy of civil responsibility and should be applied only where the principle of stare decisis requires it, or where there is an express statutory direction imposing absolute liability without negligence, as for example under the Workmen’s Compensation Act. But the modern trend is undoubtedly and rapidly drifting away from these ancient conceptions which formed the basis for trespass quare clausum fregit. As this Court said in Summit Hotel Co. v. National Broadcasting Company, 336 Pa. 182 (pp. 186-7), 8 A. 2d 302: “In our State, the doctrine of absolute liability has been invoked, almost without exception, only in that small group of actions tohich redress injuries to land, and it is only as to these that it can be fairly said that the doctrine prevails. This liability is a survival of the medieval law dictated by the landlord, in which the protection of the uninterrupted enjoyment of real property was a primary consideration.
“In the very earliest times, all rights, real and personal, were probably entitled to absolute protection, and every injury redressed regardless of fault, but a sharp line of distinction has since been marked between liability for injuries to land and injuries to persons ....
“In Pennsylvania, the principle of liability without fault for injuries to the person has received scant consideration. The great body of our law of liability for personal injuries is that of liability through fault; liability based almost exclusively on wrongful conduct....
“Illustrating the definite trend of judicial decisions in this State to restrict liability without fault to cases affecting land, and, even there, to narrow its application, we may cite the following cases: . . .. • •
“To .summarize, therefore, the cases mentioned, .it may be stated: that the doctrine.of. liability, without, fault *461has little or no place in torts involving injuries to the person, and its extension from the law of trespass to land has rarely been looked upon favorably in this Stale. In all of the exceptional cases there is a common ground of either antecedent negligence, or the assumption of a known risk of harm to others by intentional conduct . . . .”
I do not believe that the doctrine of trespass quare clausum fregit as it has heretofore existed in Pennsylvania should be extended; nor do I believe that even if it were to be so extended it should be applied in this case after the case was tried by plaintiff and defendants and decided by the jury and by the lower Court and argued originally in this Court solely upon the issue of negligence and contributory negligence.
The jury returned a verdict for the trespasser and a verdict against the nontrespasser — verdicts which the majority term hopelessly inconsistent.
Under the majority’s doctrine of absolute liability for all damages direct, indirect and consequential which result from a non-negligent trespass, both defendant Sedwick and defendant Telephone Company had an absolute inescapable liability; and it would seem, under the majority’s theory, unjust and improper to sustain the verdict for defendant Sedwick: Cf. Biehl v. Rafferty, 349 Pa. 493, 500, 37 A. 2d 729; Miller v. P.R.R., 368 Pa. 507, 515, 84 A. 2d 200; Nebel v. Burelli, 352 Pa. 70, 75, 41 A. 2d 873.
The jury, returned a verdict for defendant Sedwick either because he was not negligent or because plaintiff was guilty of contributory negligence, or both. It is not difficult to understand this verdict in the light of all the facts and attendant circumstances. Since in my opinion these were the only issues in the case, there was ample evidence to support the verdict, of the jury in favor of defendant Sedwick and I would therefore affirm it.
*462It is difficult, however, to understand how, as the jury found, the defendant Sedwick (whether agent or independent contractor) could be legally free from negligence and the defendant Bell Telephone Company legally guilty of negligence. The majority say “there is no evidence in the record of any negligence on the part of the defendant. . . . had it been necessary to prove negligence on defendant’s part, plaintiff’s proofs to that end would have been wholly inadequate.”
Since this case was pleaded, presented, tried and decided in the lower Court solely on the issue of negligence, and since plaintiff failed to prove “negligence”, I would reverse the judgment entered against the Bell Telephone Company and here enter in its favor judgment non obstante veredicto.
Mr. Justice Allen M. Stearne joins in this opinion.ItaUcs throughout, ours.
i.e., absolute liability.