199 Pa. 232 | Pa. | 1901
Opinion by
There is no substantial reason for complaint in the portions of the charge assigned for error in the first and second specifications, when they are considered in the connection in which they were delivered. The learned trial judge first commented on the testimony offered upon the part of the plaintiff, and after-wards upon that offered upon the part of the defendant. An examination of the charge, shows that the rather sweeping terms used in referring to the persons testifying, were fairly limited to the evidence for the defendant, by the classification employed. These assignments are therefore overruled. The trial judge further instructed the jury that the fact of the safety gates having been lowered and kept down for a period of time longer than that allowed by the city ordinance, had nothing to do with the case. His instructions in this respect are assigned as error in the third and fourth specifications. The learned trial court was right. The lowering of the gates and keeping them down, could not be considered as the proximate cause of the accident. According
Among the points submitted by the defendant was the sixth, which was as follows : “ If the jury believe that the sounding of the whistle and blowing off steam, or either of these acts, was caused by the wilful and malicious conduct of an employee of the defendant, not acting in the lino of his duty, the defendant cannot be held responsible for such conduct, and the jury should find for the defendant.” The court did not affirm this
In response to the plamtiff’s third pomt for charge the jury were instructed: “ That a wanton and unnecessary blowing of the whistle of an engme, on a common highway crossing, is negligence M law.”
And again in the fourth point: “ That if the jury believe from the evidence that the engineer discharged, or blew off steam from the engme, while on a common crossing, and in an unusual and extraordinary manner, and that same caused the fright of plaintiff’s horse and subsequent injuries to plaintiff, then defendant is guilt of negligence and plaintiff is entitled to a verdict.” This latter point being properly qualified by calling the attention of the jury to the fact, that they must in addition consider whether plaintiff had exercised due care for his own safety.
And yet again by the averments of the plaintiff’s fifth point for charge, wMch was as follows : “ If the jury believe from the evidence that plaintiff’s horse was kmd and gentle, and that plaintiff exercised due care wMle waitmg the approach and pass
The verdict of the jury in favor of the defendant is necessarily predicated on a finding of all essential questions of fact as claimed by it; and there was an abundance of evidence to warrant the jury in so finding.
There is nothing in either of the specifications of error that calls for a reversal of the judgment.
Judgment is affirmed.