262 Pa. 561 | Pa. | 1919
Opinion by
Plaintiff was driving a two-horse wagon down an incline leading from an overhead bridge which crosses the tracks of the Pittsburgh, Fort Wayne & Chicago Railway in the Borough of Freedom, Beaver County. His contention is that he left the team standing parallel with and clear of the tracks of defendant’s railway, which occupied the incline and the bridge, and walked back a short distance to procure articles to be placed on his wagon; that while absent “the horses had worked themselves over until the right front wheel was over the street car track”; that he had gotten on the wagon after arranging the lines, which became tangled, and was in the act of driving from the track, the right rear and front wheels being on the track at the time, when defendant’s car struck the rear of his wagon with such force as to throw him to the ground and inflict the injuries for which this action was brought to recover compensation.
The main question of fact submitted to the jury was whether, immediately before the collision, the wagon was partly on the railway track, or whether the team, as claimed by defendant, was standing clear of the track and suddenly, and without warning, backed against the passing car. A verdict was rendered for plaintiff, a motion for judgment non obstante veredicto dismissed, and a motion for a new trial discharged on condition that plaintiff filed a remittitur of the amount of the verdict in excess of $6,500. This was done, and judgment entered on the verdict. Defendant appealed.
Tbe second assignment complains that tbe jury was permitted to decide tbe case on a charge of negligence not included in tbe statement of claim. This contention cannot be sustained. Tbe fifth paragraph of tbe statement charges that defendant “did negligently and with an excessive and improper speed and without giving-plaintiff any warning and allowing him time to get off of said street car tracks drive their said car against tbe back end of tbe wagon of said plaintiff.” This statement involves three elements of negligence, to wit, excessive speed, failure to give warning and failure to allow plaintiff time to remove bis wagon from tbe track. Tbe first two charges of negligence were eliminated by tbe trial judge bolding the evidence showed tbe car was not run at an excessive speed, and that tbe motorman gave warning of its approach. There still remained the
The third assignment complains of the refusal of the trial judge to allow an amendment of the record to show an exception was taken and allowed at the close of the charge, which it is alleged was omitted by the official stenographer in transcribing the record. Plaintiff objected to the proposed amendment, claiming no exception was taken at the time and, further, that defendant failed to take advantage of an opportunity to move for such amendment until after motions for a new trial and judgment non obstante veredicto were overruled and judgment entered on the verdict, and appeal to' this court filed. The trial judge in an opinion stated his recollection to be that counsel for defendant failed to request an exception to the charge and, consequently, was not entitled to have the record amended. The court, however, ordered the rule for amendment to be converted into a motion for leave to take exception and granted the motion to file the same nunc pro tunc and make it part of the record. In view of this action of the court below, defendant secured everything to be had by an amendment of the record and nothing is to be gained by entering into a discussion of the merits of the rule to amend.
The judgment is affirmed.