Cominskey v. Connellsville, New Haven & Leisenring Street Railway Co.

Opinion by Beaver, J., The court below would have been entirely justified in granting a nonsuit at the close of the plaintiff’s testimony. The case of the plaintiff was based upon the negligence of the defend-1 ant which consisted in the alleged unusual and unnecessary speed at which the car, which struck the plaintiff’s child and caused its death, was running at the time of the accident. One witness said “the car was moving awful fast,” another “it seemed to me she was running right lively.” Another who was immediately beside the car at the time of the accident says: “ I cannot tell what the speed of the car was, but I noticed the motorman stopping the car as quick as he could.” The testi [635] mony of the same witness not contradicted establishes the fact that the car was stopped in a distance of about one half of its length; she also says “ the children were more at the side than in advance of the car, the car was pretty near as far ahead as they were at the time they were trying to cross the track; it seemed to me they were trying to cross the. track ahead of the ear,” and on her cross-examination, “ I only saw two children, they were running in the same direction as the car and as though they were trying to run around in front of the car.” The facts of this case as shown by the plaintiff are strikingly similar to Moss v. Phila. Traction Co., 180 Pa. 389, in which a compulsory nonsuit was entered in the court below and affirmed in the Supreme Court. The trial judge in the court below however concluded to hear the testimony of the defendant and in consequence of what was therein developed left the facts of the case to the determination of the jury. With the manner in which the facts were so submitted the plaintiff has little cause for complaint. It is evident that the plaintiff suffered nothing from the instructions of the court either as to the negligence of the defendant or the possibility of contributory negligence by the child who was killed, for the former must have been found to exist and the latter to have had no existence, or the verdict could not have been found for the plaintiff. The submission to tho jury of the question of the age at which children become responsible for the consequences of their acts might have been justly complained of, if the verdict had been the other way, but it did the appellant no harm for it was found in his favor and he is therefore in as favorable a position as if the court below had ruled as matter of law that the child was not responsible. The real complaint of the appellant is as to the inadequacy of the verdict, and of this he would have a right to complain in a case which was entitled to be submitted to the jury. The instructions of the trial judge as to the measure of damages were entirely correct and are evidently so regarded by the appellant, for they a.re not assigned for error. There was no error in saying to the jury “ There is no evidence here of any medical attendance paid for, or any expense for burial, and therefore they would not be elements of expense.” If the appellant had paid or was liable to pay for medical attendance or undertaker’s services he should have shown it: [636] The doctor who attended the child was examined as a witness. If there had been any charge for his services a single question would have developed the fact. He testifies however that he took the child to the hospital where it was cared for. In our view of this case-however it should not have been submitted to the jury. The appellant should not have been permitted to recover either upon his case as he presented it, or as it was developed by the entire testimony. There is therefore no error of which he can justly complain, and the judgment is affirmed.