Lancaster v. Reese

260 Pa. 390 | Pa. | 1918

Per Curiam,

Under the evidence' submitted by the plaintiff, the. negligence of the defendant’s chauffeur was for the jury, and they were instructed by the learned trial judge three or four times that unless they found he had negligently operated his employer’s automobile there could be no recovery by the widow of the deceased. One of the contentions of the appellant is that the collision was due to the negligence of the chauffeur who operated the automobile in which the deceased was riding, and, as such negligence was imputable to him, there can be no recovery. As to this the following instruction was given to the jury, to which no exception was taken: “It appears from, the evidence that he [the deceased] and the driver of the automobile had their respective duties; he to dispose of the cargo as salesman, and the driver to carry the goods to the customers and to help to unload them; that the deceased man,had nothing to do with the actual driving of the automobile. Do you believe that there was anything that the deceased man did or omitted to do that, had he done it or omitted to do it, would have avoided this accident? That is for you under the evidence. If he could have done anything to have avoided the accident, anything that any reasonably prudent and careful man would have done under the circumstances, and did not do it, then he would be guilty of contributory negligence, and if he was guilty of contributory negligence, then no matter whether either or both the chauffeurs were guilty of negligence, his widow, the plaintiff here, could not recover.”

It does not appear from the fifth assignment what the testimony of Benjamin A. Brooks was, and that assignment is dismissed for disregard of rule 28. No error appears in the sixth assignment, and it, too, is dismissed.

At the conclusion of the charge' counsel for defendant stated to the court that he took but one exception to it, which was to that portion of it which referred to the testimony of Brooks, the actuary. Assignments 7,- 8, 9,10 and 11, which now complain of other portions of the charge, are, therefore, dismissed. The excessiveness of the verdict was for the court below. In the exercise of its discretion the same was reduced to $15,000, and we cannot interfere further with it.

Judgment affirmed.