248 Pa. 227 | Pa. | 1915
Opinion by
This action was brought to recover damages for injuries to plaintiff and his wagon, which he alleges were the result of negligence on the part of defendant company. On the evening of September 7, 1912, between 7 and 8 o’clock, Tolson drove his horse and wagon out of Meredith street, turned south on 23d street, and had gone about 18 feet when the left rear wheel of the wagon was struck by a car of defendant company, going south on 23d street. Plaintiff testified that when he reached the house line on 23d street he saw the car approaching approximately 150 feet away, and when he had about
There are six assignments of error, all of which are to the charge of the court below. The first relates to the instructions given the jury defining the difference between positive and negative testimony. Two of plaintiff’s witnesses, Risky and Craig, testified they heard no signal given by the approaching car. Risky, on cross-examination said, if the motorman had rung the bell he could have heard it, as he was close to the car when it passed. He further said that he was “always listening for motormen to give warning.” Craig said he was riding in the car that collided with plaintiff’s wagon and did not hear a signal given after passing Aspen street, the next street north of Meredith street, at which a stop is made. Meredith street is a small street between Aspen and Fairmount avenue, at which cars do not stop. Upon the part of defendant the motorman’s testimony was, that the usual signals were given by ringing the gong twice as the car approached Meredith street. The trial judge in referring to this testimony said: “In that connection I call your attention to the difference between positive and negative testimony. Because a witness did not hear or see a certain thing, that is not conclusive evidence that what he did not see or hear, did not exist or did not happen, but that is merely negative evidence.’ This is not as strong as positive evidence. You will understand that, of course, from your experience in matters in general.” Appellant urges that the trial judge erred in referring to the evidence of Risky and Craig, in respect to the giving of signals by the approaching car as negative testimony. That the testimony of these two witnesses, to the effect that they did not hear any signal
The second, third and fourth assignments of error may be grouped together. Appellant’s contention is that the instruction covered by these assignments is inconsistent with his three requests for instructions to the jury, which were affirmed by the learned trial judge. As we understand those requests the general charge contained nothing contradictory to what is expressed in the points. On the contrary the charge placed the matters referred to more explicitly and concisely before the jury than did the requests, which are quite lengthy, and in substance related to the duty of the motorman, the speed of the car and the circumstances under which plaintiff had a right to cross the tracks in front of the car, exactly what the excerpts from the charge contained in the three assignments of error did. The points were affirmed, and the portions of the charge quoted in the assignments of error are quite as favorable to plaintiff as he was entitled to have them. We fail to find either error or inconsistency with the charge in the matters covered by these assignments.
The fifth assignment charges error in the instruction given the jury, that plaintiff “must show a case free from contributory negligence.” This excerpt from the charge standing alone might indicate that the court was casting an undue burden upon plaintiff, reference however to the entire charge shows that such was not the case. In discussing the elements necessary to constitute negligence and contributory negligence, the trial judge plainly and correctly stated the law, and in a charge as a whole, that
The sixth assignment refers to a portion of the charge as follows: “But we say to you furthermore that you will remember that the plaintiff himself testified that he was whipping up his horse sometime before, reaching the track,” reference to the testimony shows that plaintiff did not testify that he “whipped up” the horse, but that he “speeded” him up to escape the car. The effect of this error is so slight that it must necessarily have been harmless. It was, however, the duty of plaintiff’s counsel to call the attention of the trial judge to the error in order that the mistake might be corrected before the jury left the court room. This he did not do. In Commonwealth v. Razmus, 210 Pa. 609, it is said: “If the trial judge in referring to the testimony of a witness misquotes it in any material point, his attention should be called to the error at once, before the jury retires. A party may not sit silent and take his chances of a verdict, and then, if it is adverse, complain of a matter which, if an error, would have been immediately rectified and made harmless.” Other authorities might be cited to the same effect.
Upon the whole the case was fairly and impartially submitted to the jury. The assignments of error are overruled and the judgment affirmed.