Hufnagle v. Wilkes-Barre Railway Co.

©pinion by Mr. Justice Simpson, Plaintiff alleges that while driving along a public highway he was injured by being run into by a car of defendant. Each party avers that the accident was caused by the careless and reckless driving of the other. The case was submitted to- the jury, which rendered a verdict in plaintiff’s favor, and from the judgment thereon defendant now appeals, and assigns errors in the charge of the court. The first assignment alleges error because of the denial of the fourth point of defendant, viz: “Plaintiff’s witness, Courtright, is an interested witness.” There were two- witnesses of that name, and the point does not disclose which was referred to. Assuming that.it was James Courtright, it appeared that he was a pedestrian on the highway at the time of the.accident, claimed to be injured as a result of the collision, and had sued both [601] plaintiff’s employer, and the defendant. He had no- interest in the present suit, and was not an interested witness unless the existence of his two suits made him so-. We do not think it did. Moreover, the trial judge had-charged the jury to consider which witnesses were and which were not interested in the result of the case, and had particularly inquired of counsel whether there were any other points they desired him to mention to the jury.' Defendant’s counsel remained silent, and cannot now be heard to complain because the court relied on that silence. The second assignment complains because defendant’s ninth point was refused, viz: “All the medical testimony accounts for plaintiff’s curvature of the spine as the natural, probable result of his occupation and not due to the accident.” It was for the jury to say whether the medical testimony did “account” for that curvature. Even if every doctor had so said, and there was no other evidence to affect their opinion, the question was one of fact for the jury, and not of law for the court: McGlinn Distilling Co. v. Dervin, 260 Pa. 414. Moreover, there was evidence that before the accident plaintiff was a healthy, straight man, weighing two hundred and. ten pounds; whereas, after being confined in bed for five months, as a result of the accident, he weighed but one hundred and ten pounds and had curvature of the spine. Under those facts it would have been error to affirm the point. The third assignment complains of a fraction of the charge relating to an argument of plaintiff’s counsel on one of the points in the case. It- quotes one sentence of the charge and part of another; leaves out a large part of what the court said on the subject, in immediate connection with that which is assigned; and is now overruled'for that reason. Assignments of error must fully quote all that the court said on the subject regarding which complaint is made; but may then aver, if desired, which part thereof is objectionable. Fairness to the [602] court below as well as to this court requires an enforcement of this rule. The fourth and last assignment complains that the trial judge did not carefully explain to the jury the dif-' ference between interested and disinterested testimony. He was not asked to do so; and, as pointed out' above, he did caution the jury to consider which witnesses were and which were not interested. He also told them that the plaintiff and his wife were interested, and that their evidence should be carefully scanned and weighed in the light of that fact. If defendant wished additional light given to the jury, it should have so requested when asked to call the court’s attention to anything omitted. The assignments of error are overruled and the judgment is affirmed.