Dougherty v. Pittsburgh Railways Co.

Pee Ctteiam, The first assignment of error is to the refusal of the court to withdraw a juror because counsel for the plaintiff in his closing address said that the defendant had admitted that damages amounting to $9,000 or $10,000 had been sustained, when in fact no admission had been made. Counsel should be held to a strict accountability for language used in addressing the jury, and where willful or reckless misstatements of the evidence are made a juror should be withdrawn or a new trial granted, but such action by the court was not called for in this case. There was no contradiction of the plaintiff’s testimony as to the loss she had sustained by being unable to work and of the expenses she had incurred because of her injuries, and the evidence produced by the defendant tended to show what treatment might benefit her and the cost thereof. It was in summing up these items that the statement objected to was made. The counsel was interrupted while making the statement, and he at once said that what he meant was that the testimony was uncontradicted as to these items. This was followed by a statement by the court in the charge that no amount [349] had been admitted by the defendant, and that the amount spoken of as admitted was the amount claimed. The error of counsel was thus corrected without having prejudiced the defense. The remaining assignment is that in charging the jury the court treated the negligence of the defendant as not being in dispute. Where injury to a passenger is caused by a defect In the means of transportation, there is a presumption of negligence on the part of the carrier. The plaintiff was a passenger in one of the defendant’s cars, and the accident was caused by the failure of the brakes to work because of a broken chain. It was not shown what caused the chain to break nor what its condition was before the accident. The only proof by the defendant was that the brake held the car on the previous trip. This did not rebut the presumption. The judgment is affirmed.