Opinion by
Dеfendant has appealed from the refusal of the learned court below to grant its motions for judgment n.o.v. and for a new trial after a jury returned a verdiсt for plaintiff in the amount of $18,000. The action was in trespass for damages sustained by plaintiff when her automobile was struck by a street car driven by defendant’s employe.
Defendant asserts that plaintiff was guilty of contributory negligence as matter of law and demands judgment n.o.v. In considering this point, it is fundamental that we must take thе version of the testimony most favorable to plaintiff and ignore contrary inferences which the jury
might
have drawn from defendant’s evidence:
Davis v. Feinstein,
Under these circumstances, it cannot be said that plaintiff was testing an obvious pеril when she attempted the turn in the face of the approaching trolley car, even though the latter was traveling at a high rate of speed. It may well have appeared to a reasonable person that she had ample time to complete the turn before the street ear traversed the distance of approximately three hundred feet that it had to travel before reaching the point where she was beginning her turn. This is far different from the cases relied on by defendant. For instance, where the testimony of the
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plaintiff’s own witnesses disclosed that her deceased husband had attempted to cross on a bicycle in front of a rapidly approaching street car which was only fifty to seventy-five feet distant, we held that defendant was entitled to binding instructions:
McCracken v. Consolidated Traction Company,
A similar case is
Kilpatrick v. Philadelphia Rapid Transit Co.,
The instant case is more nearly akin to
Shannon v. Philadelphia Rapid Transit Company,
■ : We are likewise unable to accept appellant’s argument .that plaintiff 'was. guilty of. contributory negli *544 gence as matter of law by reason of her failure to clear the tracks and then stop her car short of the pedestrians who were traversing her path. This contention is based on a computation from the physical layout of the intersection that there was room for plaintiff’s automobile between the last street car track and the cross walk. It may be true that the action suggеsted would have been the wisest thing for plaintiff to do, but we do not believe that this Court should say that it was the only reasonable course for her to pursue. Such action would undoubtedly have increased the danger of striking a pedestrian, since it would have required plaintiff to increase speed until she was very close to the crosswalk. The exact position of the pedestrians relative to the trolley tracks on Fifth Avenue is not fixed by the testimony. It was for the jury to say whethеr it was unreasonable for her to expect the motorman of defendant’s street car to observe her predicament and stop in time to avоid collision with the automobile in plain view across his line of travel.
The entire question of contributory negligence was one over which reasonable minds could differ, and therefore it was properly left to the jury:
Ashcraft v. C. G. Hussey and Company,
In support of its motion for new trial, defendant contends that the charge of the learned court below failed to instruct the jury adequately on the question of contributory, negligence.- This contention is without merit. Considered in its entirety, the charge was clеar and. impartial-and fairly ..submitted the case to the jury to choose between the conflicting stories presented by . the ■ parties.; • The court ^concluded .with these words :■ -“However,--if -you. find-; that; both-, .plaintiff - and
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defendant were guilty of negligence, then Mrs. Mc-Clintock would not be entitled to receive a money damage award at your hands.” Immediately thereafter counsel for defendant said: “I have no exceptions except the refusal of the point.” If any inadequacy in the charge on contributory negligence existed, it could certainly have been corrected by amplification at that time and will not be considered now. See
Rohland v. Nagy,
Appellant’s final objection is to the refusal of the court below to withdraw a juror because of remarks made by counsеl for plaintiff in his closing address to the jury about fare raises granted to defendant. We certainly do not condone such remarks, but neither did the trial judge. The only quеstion to be decided now is whether the effect of the remarks was so prejudicial as to require a mistrial. The following comment on this situation appears in the opinion of the learned court below: “The speeches of counsel, of course, are not a part of the record, but it is our recollection that in the course of his talk to the jury counsel for plaintiff referred to the rising prices of commodities and mentioned that the defendant had recently raised its fares. Counsel for defendant immediately objected. The trial judge ordered plaintiff’s counsel to cease this line of argument, and аlso instructed the jury to disregard the remark. It will be noted that no motion for the withdrawal of a juror was made at that time. It was not until the next day that the motion was presented and refused. We do not think the trial judge abused his discretion in this regard.” It is well-settled that the discretion of the trial judge to decide whether a juror should be withdrawn is brоad:
Bausewine v. Norristown Herald, Inc.,
Judgment affirmed.