Karl v. Juniata County

206 Pa. 633 | Pa. | 1903

Opinion by

Mr. Justice Bbown,

The first fourteen assignments of error in this case question the correctness of the trial judge’s rulings in the admission, rejection and striking out of the evidence. We have examined each with care, but from none of them does it appear that substantial error was committed. All are overruled without comment, for no one of them requires from us a discussion of the rules of evidence or calls for our reasons in holding that they were not violated in the rulings complained of.

The brief extract from the charge which is the subject of the fifteenth assignment, standing alone, might justify the appellant’s contention that the court had “ignored entirely the plaintiff’s theory of the nature and cause of the injuries complained of, the theory presented being that of the defendant, viz : that the plaintiff’s physical and mental troubles were due to sclerosis of the arteries and to heart trouble; ” but, if read in connection with what immediately precedes it and other portions of the charge, it is manifest that what the court intended to say to the jury, and what they must have understood as having been said to them, was, that, if the plaintiff was suffering simply from sclerosis of the arteries and heart trouble, which had existed before the accident, then the only inquiry would be as to the extent oí its exaggeration of them. This was manifestly correct. Immediately before using the language objected to, the learned trial judge had called attention to the disagreement of the doctors as to what was the real cause ol the physical troubles of which the plaintiff was complaining, and, in other portions of his charge, he had specifically referred to the testimony in support of plaintiff’s theory that he was suffering from injuries caused by the accident. The doctors called by the plaintiff testified that he was suffering from traumatic neurosis, attributable to the accident; those called by the defendant said his troubles were sclerosis of the arteries and heart trouble, with which he had been affected before the accident. It is not possible that the jury could have understood the court, from what is embraced in the fifteenth assignment, as saying that the defendant’s theory as to the cause of plaintiff’s trouble was the true one, and the assignment complaining of this is overruled. It is perfectly clear that the learned judge was calling attention, in the first portion of the extract from his charge, simply to the defendant’s theory of what was the matter with the plaintiff.

No exception is taken to the court’s definition of an independent contractor. On the contrary, the appellant admits that he finds no fault with it, but insists that the average juryman could not understand it and that the illustration was misleading. In this we cannot concur, for it is not conceivable that the average juror could be so stupid as not to be able to comprehend the court’s very clear definition of an independent contractor, or that the apt illustration used could have had any other effect than to make it perfectly plain what the court meant by the words “ independent contractor.”

Plaintiff’s eighth point, as a whole, could not have been affirmed. It assumed that the jury could have found facts of which there was no proof, and it asked them to give undue effect to others. There was no testimony, by way of illustration, that the board of county commissioners, which had employed Horning to make the repairs on the bridge at the time of the accident, had ever employed him before; and yet the only question was as to the character of the employment in this particular instance. The character of his employment, or the number of times he had been employed by former boards, was not in the case and could have thrown no light on the character of his employment to repair the bridge in May, 1900. Again, that he was employed at $2.00 per day and directed to employ other hands at $1.50 was not necessarily inconsistent with the independent character of his employment : Harrison v. Collins, 86 Pa. 158; and, from the court’s affirmative answers- to plaintiff’s fourth and eighth points, the jury could have found what was asked for in the third. The sixteenth and seventeenth assignments are not sustained.

What the court said in its answers to defendant’s fourth and fifth points was simply that it was not negligence per se to regularly and carefully pile the planks, leaving ample room for two two-horse teams to pass immediately opposite the pile, and leaving them there from the evening of May 29, 1900, to remain over Decoration Day until the following morning — May 31 — if the said planks were necessary for the repairs in hand; for, as was said of the repair or construction of a highway in Keeley v. Shanley, 140 Pa. 213, in such a case “ there must necessarily be inequalities, heaps of stone, and other materials upon the ground necessary for such operations.” •

As there was some testimony relating to the defective eyesight of the appellant, the twentieth assignment is overruled and, in passing to the twenty-first and last, we need only say that, taking the charge in connection with the answers of the court to plaintiff’s first, second, fourth, fifth, sixth, seventh, eighth and tenth points, it is not so far open to the exception taken to it as to call for a reversal of the judgment.

Judgment affirmed.