139 Pa. 404 | Pa. | 1891
OPINION,
It is conceded by the learned counsel for plaintiff that there is nothing in this record on which to base the first and second specifications of error. It does not appear that any objection was made or exception noted in the court below as to either of the matters referred to in these specifications, and hence the questions intended to be raised are. not properly before us. When the relation of the fourth juror to a member of the company defendant was disclosed, the plaintiff might have interposed a challenge for cause, and if the court had refused to sustain it, he could have excepted, and requested the court to seal a bill. In that way the facts could have been brought upon the record, and the question would have been properly presented; but, as the record stands, the first and second specifications must be dismissed without any intimation of opinion as to the merits of the questions intended to be raised.
The prayer for instruction, recited in the third specification, was rightly refused, because it entirety ignores the question of contributory negligence. While the evidence on that subject is very slight, we are not prepared to say that it does not amount to more than a mere scintilla.
In that portion of the charge recited in the fourth specification there is manifest error, especially in what was said by the learned judge in relation to the degree, as well as the burden of proof. Among other things, he instructed the jury that they must “ be thoroughly satisfied that the accident did not occur in consequence of the carelessness of the plaintiff: in his driving. You are to be'satisfied on that point, because the duty of the plaintiff is not only to prove negligence on the part of the defendant, but also to prove that he was clear of contributory negligence,” etc.
In view of the uncontradicted evidence as to the serious nature of plaintiff’s injuries, his actual outlay for surgical attendance, loss of earning power, etc., the verdict of six and one fourth cents in his favor was a mere travesty of justice that could not be condoned by the provisional order for a new trial which the plaintiff refused to accept. In finding for plamtiff, the jury must have reached the conclusion that his injuries were caused by the defendant company’s negligence, and that he himself was not guilty of any negligence contributing thereto. Under these circumstances, he was entitled, as matter of
The fourth, fifth, and sixth specifications of error are sustained.
Judgment reversed, and a venire facias de novo awarded.