236 Pa. 240 | Pa. | 1912
Opinion by
A boy fifteen years of age was riding south on a bicycle, on a street on which the defendant’s electric truck was running north. At about the same time the
The assignments to be considered relate to the instructions in relation to negligence and to the measure of damages. The instruction complained of on the question of negligence was this: “If you come to the conclusion that the accident was on the whole due to the negligence of the defendant’s driver, without the concurrent negligence of the plaintiff, that is one thing. If you come to the conclusion that it was due to the plaintiff’s carelessness, want of that forethought which he ought to have exercised, by getting himself into a position where the accident was practically unavoidable by anybody, then your only course is to find a verdict for defendant. If, however, you come to the conclusion that the plaintiff was not guilty of carelessness but the defendant was, and that the carelessness of the defendant, without admixture of carelessness of the plaintiff, produced this accident, then your verdict ought to be for the plaintiff.” At the close of the charge an exception was taken “to so much of the charge of the court as instructed the jury that the issue is whether the plaintiff or the defendant was negligent.” It is conceded that the instruction given was correct, but it is argued that there was error in not charging that there could be no recovery by the plaintiff if neither party was in fault and the injury was due to accident without negligence. It is a sufficient answer to say that the court was not asked to so charge. The exception did not call attention to an omission to charge, but suggested error in the instruction given. It was said
We find no error calling for a reversal and the judgment is affirmed.