Woeckner v. Erie Electric Motor Co.

Opinion by Me. Justice Pell, At a former trial of this case offers of testimony to show that the plaintiff, prior to the occurrence of the accident, had per [208] mitted his children to play on the street unattended were rejected. These rulings were sustained, as it appeared from uncontradicted testimony that the child was not on the street with the permission of her parents at the time she was injured, but that she had escaped from her home, notwithstanding the exercise of some degree of care by them. It was not claimed that the child when injured was doing what she had been permitted to do habitually, and proof of acts of negligence on the part of the parents which were disconnected with the accident and in no manner contributed to it was held to have been properly rejected. See 182 Pa. 182. The testimony at the second trial did not differ materially from that produced at the first, and it was not error to reject the offers covered by the first eight assignments. The ninth assignment is to the rejection of the opinion of a witness that the motorman exercised good judgment in releasing the brake and allowing the car to go ahead. The circumstances were fully disclosed by the testimony, and no special knowledge or training was required to determine their bearing on the issue, and there was no ground for permitting the witness to supplement his description of what occurred by his opinion. The ruling was in entire accord with the rule on the subject as stated in Graham v. Pennsylvania Co., 139 Pa. 149, and since followed in McNerney v. City of Reading, 150 Pa. 611, Dooner v. Canal Co., 164 Pa. 17, Cookson v. Ry. Co., 179 Pa. 184, and Auberle v. City of McKeesport, 179 Pa. 321. All of the defendant’s written points for charge were answered by the court, and correctly answered. We see no ground for complaint that those answered in the negative were not read to the jury. The defendant had the advantage of a distinct and responsive answer to the points refused, without the disadvantage of having his propositions of law read to the jury and disaffirmed. The judgment is affirmed.