33 Pa. Super. 312 | Pa. Super. Ct. | 1907
Opinion by
The single matter, which the appellant who was defendant below assigns for error, is the court’s answer to a certain point or request for instructions presented by the plaintiff. The docket entries do not show that any point in writing was presented to the judge before he charged the jury, and no such point is among the files sent up with the record. But it appears from the report of the charge, which was approved by the judge and filed by his direction, that the plaintiff “ submitted two points or requests for specific instructions,” and that in answer to the second the court gave the instructions complained of. The assignment of error, therefore, does not relate to a written answer to a point in writing, which was read to the jury and with the point then filed, but to oral instructions given in answer to a point or request, which, for aught this record shows, may have been submitted orally. The filing of the stenographer’s report of these instructions did not of itself bring the case within the literal terms of sec. 1 of the Act of March 24, 1877, P. L. 38. We do not wish to be understood as intimating that oral instructions to the jury given in the way thus described are not assignable for error merely because the provisions of the act of 1877 were not strictly followed; áll that we decide is that if the record does not bring the case within the provisions of the first section of the act of 1877 such instructions do not stand on a higher plane than other portions
The appeal is quashed.