206 Pa. 335 | Pa. | 1903
Opinion by
The first assignment of error is based, upon the following extract from the charge of the learned trial judge, “ In order that he (the plaintiff) should be entitled to damages he must prove two things to you, first, that he was in no wise guilty of any negligence that contributed to the injury.” Taken by itself this was clearly an erroneous statement of the law, for it would impose upon the plaintiff the burden of showing affirmatively that he was not guilty of contributory negligence. This is more than he is required to do. It is sufficient that his own evidence does not disclose any contributory negligence. The court below evidently made the statement complained of, inadvertently, as his intention, as gathered from other portions of the charge, was merely to instruct the jury-that before a recovery could be had by the plaintiff, they must find two things, first, that he was not guilty of contributory negligence, and secondly, that the defendant was negligent. The court gave substantially that instruction to the jury at the conclusion of the charge, in the following language: “ The facts are for you. The value of the testimony is for you. If the plaintiff, without any fault of his own, was injured by the fault of the defendant’s motorman, then he can recover, and if he can recover, he can recover according to the measure of the damages I. have given you. If, however, he in the smallest degree contributed himself to the injury, he cannot recover. Moreover, he cannot recover if, however innocent the plaintiff was, the motorman did nothing wrong. If the motorman did his duty simply, and, in consequence of some other set of circumstances, not known to us, the accident happened, then the plaintiff cannot recover. It requires negligence in the defendant and freedom from negligence in the plaintiff, both to enable the plaintiff to recover.” We think these instructions fully corrected the inaccuracy of the expression used in the former part of the charge and gave to the jury a plain- and accurate statement of the law.
The second specification is practically, as was the case in Drenning v. Wesley, 189 Pa. 160, “ to the entire charge of the court. No specific error is pointed out to us by the assignment and therefore no discussion of it is called for.” We have however carefully examined the charge in the light of this assignment. The appellant admits that the charge, with the exception of the portion covered by the first assignment, does not contain any misstatement of law. But it is contended that “ it amounted to an argument in favor of the defendant and is replete with comments on the testimony which are unwarranted and which prejudiced the plaintiff’s case before the jury.”
Our reading of the charge does not so impress us; we find no misstatements of the evidence, and no unwarrantable conclusions. As this court said in Newhard v. Yundt, 132 Pa. 324, in answer to a somewhat similar criticism of a charge: ‘‘ nor were there any such expressions of opinion upon the facts as would amount to error, under the authority of Ditmars v. Com., 47 Pa. 335, where it was held that it is often proper for the court to express an opinion upon the facts, provided care is taken not to infringe the province of the jury. In referring to the testimony and to the names of the witnesses by whom it is given, much latitude must necessarily be allowed in a charge, and where there is nothing in it that is unfair or misleading or that withdraws the facts from the jury, we cannot reverse. We are not prepared to say that either of these defects appears in this charge. If it can be said to lean somewhat toward the plaintiffs it may be due to the strength of their case.”
In Fredericks v. Northern Central R. R. Co., 157 Pa. 103, Mr. Justice Gekkn said, on page 128: “The complaint that the judge expressed an opinion on the facts .... is without merit. In the case of Leibig v. Steiner, 94 Pa. 466, we said, A judge may give his opinion freely on the weight and value of evidence for he is the best and safest adviser of the
In Price v. Hamscher, 174 Pa. 73, our Brother Fell says on page 78: “ While a judge may not decide a disputed question of fact when the averments of the parties in its support or denial are sustained by reasonable proof, he may express his opinion respecting the evidence, and at times it is his duty to do so.”
It may be admitted that in the present case there was a rather strong intimation of the opinion of the court upon certain facts, but as the case was left fully and clearly to the jury, we see nothing which calls for reversal in this respect.
In the remaining assignments of error the appellant complains of the exclusion of certain offers of testimony. Even if this were shown to be error, it would be harmless. For the plaintiff was permitted to testify to substantially the same allegations as' those contained in the rejected offers, and the testimony was thus before the jury for whatever it was worth.
The assignments of error are all overruled and the judgment is affirmed.