62 A.2d 28 | Pa. | 1948
This is an action in trespass brought by Susietta Elizabeth DuPont to recover for injuries sustained by her while a passenger in an automobile owned and operated by defendant. At 6 P.M. on March 16, 1945 plaintiff was riding with defendant east on U.S. Route 40. Just after leaving Uniontown and while descending Gray's Hill defendant's car collided with another car. This second car had pulled out from a gasoline station at the foot of the hill onto the highway in front of defendant's car. Defendant applied his brakes but was unable to stop. It was shown that the road was wet at the time of the accident and also that defendant's brakes had been in need of repair for several months. *421 Defendant turned to the right to avoid the impact, but struck the right rear of the second car with the left front wheel and fender of his car, causing slight damage. As a result of this accident, plaintiff suffered a broken bone in the foot. After trial the jury rendered a verdict in favor of the defendant. Plaintiff moved for a new trial. It was refused. This appeal followed.
Appellant contends that the verdict was against the evidence. This Court has repeatedly said that the granting or refusal of a new trial rests in the discretion of the trial judge, and it is only where that discretion has been palpably abused that an appeal can be taken: See Class Nachod Brewing Co. v.Giacobello,
It was plaintiff's contention that the proximate cause of the accident was defendant's negligence in not watching the road more carefully and in having defective brakes on his car. It was the defendant's contention that the proximate cause of the accident was the sudden pulling out of the other car, without warning of any *422 kind, on a wet road. These respective contentions made a clear cut issue for the jury and it was submitted to the jury under proper instructions.
Complaint is made of that portion of the charge of the trial judge which states: "A passenger is chargeable with the driver's negligence insofar as he concurs therein and a failure to protest against reckless driving amounts to concurrence." In the instant case, at the conclusion of the charge to the jury, the trial judge specifically asked: "Does counsel on either side have any suggestions or requests for any further instructions?" to which counsel for appellant replied: "None, your Honor."
As to the foregoing complaint two things are to be said: first, there is no proof of such reckless driving on the part of the defendant as to require his guest passenger to protest against it. Passengers in a car are not expected to criticize a chauffeur's driving unless his recklessness is palpable and flagrant. Huddy in Automobile Law, Volume 5-6, section 140 says: "A guest is not bound to act except in case of a danger actually known to him, or so obvious that he is presumed to know it; and not then if the driver is aware of the same and striving to avoid it; for to do so might tend to increase the danger." This Court said in an opinion by Justice FRAZER inAzinger v. Pa. R. R. Co.,
The third assignment of error relates to the instruction of the court in regard to pain and suffering, the court stating: "Physical or mental pain or suffering is not capable of being measured exactly by any equivalent in money. Pain and suffering have no monetary value and are not to be compensated by a sum of money that might be regarded as a pecuniary equivalent, but are to be considered as items for which a reasonable allowance may be made by the jury on the exercise of their good judgment and sense, taking into consideration all the facts and circumstances of the case." The jury in bringing in a verdict for the defendant found that there was no negligence on his part. Since that was the jury's finding there was no occasion for the jury to consider the question of damages and instructions on damages became merely of academic interest.
The fourth assignment of error is based on the following: after the plaintiff offered in evidence X-ray pictures showing the extent of her injuries the defendant offered in evidence corresponding pictures taken a long time after the appellant's fractured bone had knitted When the court permitted the jury to carry the latter pictures with them into the jury room, the legal purpose thus served was explained. In view of the fact that the jury found there was no negligence on the part of the defendant, these pictures were without effect.
The judgment is affirmed. *424