76 Pa. Super. 550 | Pa. Super. Ct. | 1921
Opinion by
This is an action of trespass, for assault upon the minor plaintiff, in which the plaintiffs recovered judgments in the court below and the defendant appeals. The only assignment of error is to the refusal of the
Two ladies called as witnesses by the plaintiffs had testified at the trial that while sitting at a window of No. 219 Montrose street, they had. seen the defendant slap and hick the minor plaintiff and that the assault occurred on Bodine street, near Montrose street. They further testified they ran over to where the little boy was lying on the pavement and one of them said to the defendant, “What are you doing?” whereupon the defendant told her it was none of her business; that one of the ladies picked up the little boy, who was bleeding from his mouth and nose, and carried him home and gave him to his mother. The defendant did not take depositions in support of his motion for a new trial upon the alleged ground of after-discovered testimony, but contented himself with filing the affidavit of one Abe Cohen, the material allegation of which was as follows, viz: “I am familiar with the locality of Montrose and Bodine Sts., and from careful examination I have made, I state that it is physically impossible for any one in the windows of No. 219 Montrose St., to see a person coming out into Bodine St. from the alleyway in the rear of No. 228 Montrose St. and commit an assault down on Bodine St. which runs south from the point where Bodine St. intersects with the south side of Mon-trose St., as No. 219 Montrose St. does not face Bodine St., but is about fifty feet east thereof, from which point such a view would be obscured by brick houses.” The house No. 219 is upon the north side of Montrose street; if it be conceded that it stands fifty feet east of Bodine street, then it seems clear that from the windows of that house there would be an unobstructed view of the west side of Bodine street for at least a short distance south of Montrose street. The argument of appellant is that, as the affidavit of Cohen states that it is physically impossible for any one in the windows of 219 Montrose street to see a person coming out into Bodine street from
The judgment is affirmed.