Roberts v. Vallamont Traction Co.

270 Pa. 19 | Pa. | 1921

Opinion by

Mr. Justice Schaffer,

A single question is presented in this appeal. The action was for damages for personal injuries, the negiigence alleged being that a street car, from which plaintiff was alighting, started prematurely. Counsel for appellant, who presented his case fairly and ably, concedes the issues involved were for the jury, and complains of but one trial error—that the court in its charge said, “If this plaintiff did get off this car before the car came to a full stop, then you would be justified in finding her guilty of contributory negligence”; whereas, he contends, the court, to give expression properly to the rule of law which badges it as negligence per se to get off a moving car, should have instructed the jury that, if plaintiff did get off the car before it came to a full stop, they “must” find her guilty of contributory negligence. All must agree with the proposition that to get off a moving car is negligence per se, and concede that the excerpt quoted from the charge was an inadequate presentation of the rule to the jury; but we cannot subscribe to the conclusion that it was such a fundamentally erroneous statement of law as requires "a reversal of the case.

At the conclusion of his charge, the learned trial judge inquired, of counsel for both sides, whether there was anything further they desired him to say to the jury; and defendant’s counsel did not indicate any further instructions as necessary. It was counsel’s duty, if the part of the charge now assigned as .error was deemed inadequate, to have then called the court’s attention to the matter of complaint, in order that it might have been amplified, or put in more imperative form. It is manifest, from a reading of the entire charge, that the court had no intention to pare down the rule of plaintiff’s duty not to alight from a moving car, or to minimize the result to her if she violated such rule; furthermore, we are convinced the jury understood what their duty was, and were not misled by the inexactitude of expression now assigned for error. The language complained of could not have impressed defendant’s counsel, at the trial, as being of the importance now assigned to it, because, when excepting to the charge at its conclusion, only a general exception was taken. “A mere inadequacy of charge cannot be taken advantage of if not especially excepted to at trial. Courts of appeal will refuse to review matters not called to the attention of the trial court unless the alleged errors are basic and fundamental” : Sikorski v. Phila. & Reading Ry. Co., 260 Pa. 243; Mackowski v. Phila. Rapid Transit Co., 265 Pa. 34.

The assignment of error is overruled and the judgment is affirmed.