Pennsylvania Railroad v. Donora Southern Railroad

Opinion by Mr. Justice Fell, This was an action of ejectment to recover possession of a narrow strip of land lying between the plaintiff’s road and the Monongahela river. The plaintiff’s title was by purchase from Moorhead and the defendant’s by purchase from .Barn-ford who claimed to have acquired title by adverse possession. That the defendant’s predecessor in title had been in possession a sufficient length of time to acquire title adversely, was not disputed, but the character of his possession was. The vital question in the case was whether he had occupied the land as a tenant of Moorhead or under a claim of ownership. The first assignment is that the court incorrectly stated in the charge that it was not disputed that Bamford took possession of the land in question at the time of his purchase of a lot from Campbell in 1871, when in fact the defendant’s claim and the testimony in support thereof w7as that he took possession only of a part of the land at that time and of the remainder at the time of a later purchase of another lot from another person. Both purchases were made more than twenty-one years before a dispute arose as to the title, and the error had no bearing on the period of possession as it was concededly sufficient to found an adverse title on. It is, however, argued that this statement withdrew the attention of the jury [364] from the disputed claim that Bamford had acquired a right to a part of the land by virtue of his second purchase and had an important bearing on the question as to whether he had entered into possession as a tenant. The error complained of was not the erroneous statement of a fact upon a decisive point in the case, but a misstatement .that was wholly unimportant except that it might tend to divert the attention of the jury from a ground of dispute collateral to the main question. Moreover, the attention of the judge was not called to the misstatement at the time. This should have been done before the jury withdrew in order that he might correct it: Halfman v. Insurance Co., 160 Pa. 202; Provident Life and Trust Co. v. Philadelphia, 202 Pa. 78; Kuntz v. Railroad Co., 206 Pa. 162; Commonwealth v. Razmus, 210 Pa. 609. In the case last cited it was said by the present Chief Justice: “ If the judge in referring to the testimony of a witness misquoted it in a material point, his attention should have been called to it at once before the jury retired. 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.” There is no merit in the remaining assignment, that the charge was inadequate because of the failure of the court to comment on the testimony and to call the attention of the jury to the various facts and circumstances which indicated the nature of Bamford’s possession. The case had been very fully argued by most competent counsel. The charge, which covers eight pages of the paper-book, contains an exceptionally full, clear and accurate statement of the law, of the contention of the parties, of the exact question to be decided, and of the grounds on which the verdict should be based. Whether further comment was needed was a matter that rested in the discretion of the trial judge: Borham v. Davis, 146 Pa. 72. The judgment is affirmed.