177 Pa. Super. 595 | Pa. Super. Ct. | 1955
In this trespass action the plaintiff sought damages resulting from the collision of his automobile with a truck of the defendant in the intersection of two streets in Pittsburgh. The verdict of the jury was for the defendant on á specific finding that plaintiff w;as guilty of contributory negligence. Plaintiff’s appeal is from the refusal of a new trial.
There is no merit in plaintiff’s complaint- here made for the first time that he was prejudiced when his case was called for trial late in the afternoon of- February 15, 1954 and he was required to proceed. Thére was still time before the usual hour of adjournment for counsel to open to the jury and to complete the direct examination of plaintiff which was done.. Especially in a busy court, the mechanics of assigning cases for trial' in disposing of a trial list is wholly within the discretion of the court. Plaintiff’s complaint in reality is not that the court abused its discretion in requiring him to proceed, but that a case involving the claim of somé other plaintiff should have been called.
■ At the close of the court’s charge .plaintiff was given the opportunity to request additional instructions. His counsel called-the court’s attention to one inaccurate 'statement, not material here, but nothing more, and, plaintiff did not object specifically to any, portions of the charge nor generally to the charge
The trial judge did not err, especially in the absence of a specific request, in failing to comment on the failure of the defendant to call as a witness its supervisor who came upon the scene after the accident. All that this witness could have testified to would have been the position of the two vehicles after they had come to rest which would have contributed little on the subject of the negligence of either party.
In charging on the question of negligence the trial judge said: “We say to you as a matter of law that negligence is the want of due care, the failure to do something which the ordinarily prudent person would or should do under the circumstances, or the doing of something which the ordinarily prudent person Avould not or should not do under the circumstances ; and of course it can be a combination of both in part. Now Avho is this ordinarily prudent person that we talk about? Well, if you thinh you are an ordinarily
Other questions raised by appellant do not merit even passing comment.
Judgment affirmed.