58 Pa. Super. 114 | Pa. Super. Ct. | 1914
Opinion by
This is an action of trespass to recover for personal injuries to Harry Feldman, a minor sixteen years of age, who in this action was represented by his father and next friend, the latter also suing in his own right. The plaintiffs recovered verdicts and judgments in the court below and the defendant appeals. Young Feldman was injured, in January, 1912, while coasting upon a street of the city of Pittsburg, by coming into collision with a large pile of iron and junk which the defendant had maintained in the street for at least one month prior to the accident. There are in this' appeal but two assignments of error, one referring to the refusal of the court to give binding instructions in favor of the defendant, and the other to the refusal of a new trial.
The accident happened on a Sunday evening, and the evidence would have warranted a finding that there was at that time no traffic upon the roadway of the street in question, and that the boys while engaged in coasting were able to control the motion of the sled where other highways crossed the street in question. The evidence would have warranted a finding that the street at this particular locality had been very generally used by boys and children for coasting during the winter for many years. There was no ordinance of the city
.. The evidence in this case would have warranted a finding that this defendant had for at least' one month maintained in the cartway of the street a pile of scrap iron, including an old steam boiler and lot of old pipe, with other material, which extended from the curb a distance of ten or twelve feet across the cartway, the entire width of the cartway being only twenty-nine feet. This was not only in direct violation of the provisions of an ordinance of the city, but it was unlawful and a nuisance at common law. That the defendant had so maintained this obstruction in the highway was admitted at the trial, and the only question seriously in dispute, under the evidence, was whether a light
The remaining specifications of error refer to the refusal of the court below to grant a new trial. The principal reason advanced for the new trial below, and-most urgently pressed upon us here, is that the verdict was against the weight of the evidence. The testimony was conflicting, and, though to our mind it might fairly have led the jury to a different conclusion on the questions of the defendant’s negligence and the contributory negligence of the boy; these were questions of fact for the determination of the triers of facts, and not for the court: Kelly v. Traction Co., 204 Pa. 623. The action of the court in refusing a new trial is only to be reversed when an abuse of discretion by that court is made to clearly appear. We find nothing in the present case which would warrant us in' convicting the court below of an abuse of the discretion with which it was invested, and the specifications of error are overruled.
The judgment is affirmed.