Appeal, No. 50 | Pa. | Oct 5, 1896
Opinion by
In any view that can be reasonably taken of the testimony that was properly before the jury, this was clearly a case for them on questions of fact involving the defendant company’s negligence, and also the alleged contributory negligence of plaintiff’s husband, since deceased. The testimony, covering over three hundred and fifty pages in all, is too voluminous to admit of anything more than a general reference to its character and effect.' A careful examination of it, as a whole, has convinced us that any attempt to do more would subserve no useful purpose. Without, therefore, referring even to its salient points, relating to said questions of negligence and contributory negligence, it is sufficient to say, it was of such a character that it became the manifest duty of the learned trial judge to submit it to the jury, with proper instructions as to the law applicable to the facts that might be found by them therefrom. That was accordingly done in a clear, well-guarded and adequate charge, in which we find no substantial error. The controlling questions of fact, on which plaintiff’s right to recover depended, were definitively settled by the verdict in her favor. It necessarily implies a finding to the effect that the defendant company was guilty of negligence which was the proximate cause of the death of plaintiff’s husband, and that no negligent act of his contributed thereto. That such a finding was fully warranted by the testimony cannot be doubted.
It follows from what has been said that the judgment should not be disturbed. A careful consideration of the record with reference to each of the specifications of error has satisfied us that neither of them should be sustained. The first challenges the correctness of the court’s answer to defendant’s fifth point. In view of the evidence before the jury, there was no error in saying that it was for them “ to ascertain whether the decedent in this case could not have a proper view of the track without getting out of the wagon.” An unqualified affirmance of the point would have been error.
The next five specifications complain of the refusal of the court to affirm defendant’s points recited therein respectively.
The subject of complaint in the seventh specification is the affirmance of plaintiff’s second point, viz: “ Safety gates which should be closed in case of danger, if standing open, are an invitation to the traveler on the highway to cross, and while tins fact does not relieve him from the duty of exercising care, it is .a fact for the consideration of the jury in determining whether he exercised care according to the circumstances.” It requires no argument to show that this proposition is correct, especially in view of the evidence in this case, and hence there was no error in affirming it.
Considered in connection with other portions of the general charge, we fail to discover any error in the excerpts recited in the ninth and tenth specifications; nor are we convinced that there was any error in overruling defendant’s motion to strike ■out the evidence of Thomas Cordon, referred to in the eleventh ■specification.
Judgment affirmed.