Corrigan v. Wilkes-Barre & Wyoming Valley Traction Co., Appeal, No. 84

Appeal, No. 84 | Pa. | Oct 11, 1909

Opinion by

Mr. Justice Potter,

In the statement of questions involved in this appeal, counsel for appellant have given us no intimation of the nature of the controversy, or of the precise questions to be determined. Nor does the history of the case supply any particulars which aid us in getting at the points to be determined. Counsel have also injected into the history of the case an uncalled for reflection upon the trial judge, in the statement that after rejecting an offer of evidence, he proceeded to give testimony upon the subject. We do not find anything in the record to justify this assertion. The matter referred to is set out in the first assignment of error, wherein it is alleged that the court erred, when, after refusing to allow a witness to testify as to what parts of the day in that locality are the warmest during the whiter time, from the first of December until the first of March, the court added, by way of comment, “It is well known, especially in this part of Pennsylvania, it would be almost impossible to answer that question unless a man kept an actual record, ” and then added in substance, that the temperature might vary at the same hour on different days. The court had previously thereto ruled that if the witness would state that he had kept an account, or could say from recollection what the warmest part of the day in question was, he might testify; but the witness would not attempt to say on what part of the particular day in question the temperature stood at a certain point. We think the ruling of the trial judge, in this respect, was correct. As the comment of which counsel complain referred to evidence which was excluded, we do not see that the comment did any harm. The exclusion of the testimony itself is not assigned as error. If its admission had been deemed important, counsel should have taken an exception, and assigned error to its exclusion by the court.

In the second and third assignments of error, counsel for the defendant complain of the admission of the testimony of two character witnesses whose testimony was negative only. Each of these witnesses testified to an acquaintance of several years’ standing, with the person whose reputation was in question. The ordinary result of long acquaintance would be to place them in a position, where they would have been likely to hear comment upon the reputation, if it had been made; and not having heard it questioned, they could so testify. Their evidence was perhaps of no great importance, but its weight was for the jury, and it was corroborative of other character witnesses. We see no error in the admission of this evidence.

In the fourth assignment, complaint is made of the charge of the court, as set forth in this extract: “The loss of the leg, of course, is permanent; but if he has sustained other injuries by this accident, are they permanent or are they temporary, and if only temporary how long will they last, according to the evidence in the case?” There was testimony showing other injuries, beside the loss of the leg, such as cuts above the knee, and on the head, and on the hands and face, and bruises on the body. And also as to pain in the leg after the amputation. The court did not say to the jury that these injuries were permanent, but left that question for their determination.

The fifth specification of error is without merit. The answer of the trial judge to the communication from the jury, was entirely proper. No exception to it was taken by counsel for appellant, and it cannot properly be assigned for error.

In the sixth specification, complaint is made of the qualification of defendant’s second point, in its affirmance by the court. In the point the court was asked to say that the testimony of a witness for the plaintiff was that of one vitally interested in the verdict, and that she was contradicted by disinterested witnesses of the defendant. The court rightfully refused to pronounce upon the bias of the witnesses, and said to the jury, that it was for them to say whether or not the witnesses were disinterested. The trial judge was also correct in saying to the jury that conscious falsehood or intentional misstatement must be found upon the part of a witness, before the jury would be entitled to disregard the whole of the testimony of such witness.

The assignments of error are all overruled, and the judgment is affirmed.