219 Pa. 492 | Pa. | 1908
Opinion by
The first two assignments of error relate to the right of the plaintiffs to recover. They cannot be sustained. The boy injured was five years and three weeks of age. While the defendant’s car was standing at a crossing, he got on a step of the front platform. The platform was entirely closed by wooden doors with glass windows in the upper panels. He took hold of a horizontal bar fastened to the woodwork of the door a few inches below the glass. He testified that after the car was in motion the motorman looked through the glass and saw him and shook the door and caused him to fall. This testimony was denied by the motorman who testified that he did not see the boy or shake the door, and there was testimony that tended to show that the motorman could not have seen him because the wooden part of the door was several inches higher than the boy’s head and that the boy while standing on the step was two or three feet back of the position occupied by the motorman. It was not, however, shown that it was impossible that the motorman by change of position or by leaning over could have seen, and the positive testimony of the boy that he did see him took the case to the jury on the ground of negligence in shaking the door when the boy was in a place of danger: Levin v. Traction Co., 194 Pa. 156. The father of the boy was not precluded from recovering because he permitted his son to go on the street in a business part of the city unattended. The boy had gone almost daily to the home of his aunt nearby and had on a few occasions gone with his cousin, a boy sixteen years old, to deliver papers in the street. His parents knew that he had done this once or twice, but did not know that he was in the habit of doing it, and on the occasion of his injury they did not know that he had left his aunt’s house or was likely to do so.
There was not the slightest foundation in the testimony nor in the circumstances connected with the case to support the statement of counsel that there had been a suppression of evidence and the jury were so instructed by the court in answer to points presented by defendant’s counsel. This instruction did not cure the error of counsel. The effect of the statement on the minds of the jury is as manifest as was its purpose. The other statements were intemperate appeals to the prejudices of the jury and invitations to find a verdict on false grounds.
No verdict that may have been obtained by such means should be allowed to stand and the effective remedy is to withdraw a juror and continue the case. If courts are to continue to be places where justice is judicially administered, causes must be fairly presented and fairly defended, and the duty of counsel in this regard is not less important nor less imperative than that of the judge. A cause is not well tried unless fairly tried and a verdict obtained by incorrect statements or unfair
The judgment is reversed with a venire facias de novo.