240 Pa. 528 | Pa. | 1913
Opinion by
On the evening of September 23, 1909, Etta Gilkey, one of the appellees, boarded a car of the defendant company in the Borough of Athens, Bradford County, for the purpose of being carried to the town of Sayre, in the same county. It was an open summer car, with seats running crosswise. When the appellee and a companion got on the car they notified the conductor that they wished to alight at Pleasant street, which runs west fróm Keystone avenue, in the town of Sayre, on which the tracks of the defendant company are laid. Mrs. Gilkey and her companion both testified that the car did not stop at Pleasant street, but did stop at Lake street, which runs west from Keystone avenue, about four hundred feet farther north. The complaint of Mrs. Gilkey and her husband is that, when the car stopped
Maple street runs east from Keystone avenue, one hundred and twenty-six feet south of Lake street, and witnesses for the defendant testified that the car stopped there and did not stop at Lake street, but at a point beyond. It is earnestly contended that, if this be true, Mrs. Gilkey must have been thrown from the car in attempting to get off while it was in motion between the two streets, and this would be so if the witnesses for the defendant were to be believed by the jury. The distance between Lake street and Maple street is but one hundred and twenty-six feet, and, while some witnesses testified that the car stopped at the former, and others at the latter, their testimony is not irreconcilable in view of the short distance between the streets. That the car did stop in the vicinity of one or the other is an established fact, and we cannot, therefore, say there was error in anything said by the learned trial judge in those portions of his charge which are the subjects of the first, second, third and fourth assignments of error. The crucial question in the case was,
Complaint is made of the failure of the trial judge to fully define contributory negligence. The only contributory negligence involved in the case was the alleged attempt of Mrs. Gilkey to alight from the car while it was in motion, and the jury were instructed that, if she undertook to get off the car while it was in motion, she was guilty of contributory negligence and could not recover. No fuller instruction as to contributory negligence was called for, but, if counsel for appellant thought differently, they were given the opportunity to ask for it, when, at the conclusion of his charge, the learned trial judge said: “Is there anything further that you wish me to say to the jury, or have I omitted anything?”
The fourth point submitted by the defendant was properly refused. It was somewhat involved, was argumentative and, in effect, asked that a verdict be directed for the defendant. Besides, all the instruction to which the defendant was entitled in support of its contention had been given to the jury in the court’s affirmance of its third point, which was as follows: “If the jury find from the evidence that the car stopped about five feet north of the crossing at Maple street and did not again stop until after the accident, but proceeded from its place of stopping near Maple street, at a rate of about three or four miles an hour to the place of the accident, and if they find that the plaintiff was not thrown from the car by a sudden jerk when it started, but that she fell from the car after being carried some distance along Keystone avenue to about in front of the house of John Brainard, the plaintiff cannot recover.”
Nothing developed in the cross-examination of Grant, a witness for the defendant, required the court to permit defendant’s counsel to ask him, on redirect-examination, the disallowed questions which are the subjects of the tenth and eleventh assignments, and they are ac
Judgment affirmed.