Dormer v. Alcatraz Paving Co.

Opinion by Orlady, J., The request of defendant for binding instructions was rightly refused by the court. The case was submitted in a charge [412] of unusual length, in which the defendant’s negligence and the plaintiff’s contributory negligence were presented in a fair and adequate manner, and the theory of each side was fully explained in the answers to the points as presented. The verdict of the jury is conclusive against the defendant’s contention on the facts. The detached parts of the charge, of which the defendant complains, did not prejudice the defense in the minds of the jury, except that part covered by the fourth and seventh assignments of error. The court said: “ I have not commented upon the testimony of the one side or the other, or any given point, nor to what any particular witnesses, probably outside of the plaintiff, have testified to. That is all left to you; and the court have not commented upon the testimony or attempted to state it to you for fear that in the great mass of it, it might be said, when the court was through, that we had given more attention to or laid more stress upon the testimony on the one side than the other.” There was sufficient evidence to charge the defendant with negligence. “When a presumption of negligence has once arisen, either as matter of law, as in the cases of injury to a passenger in charge of a common carrier, or from affirmative evidence of acts of commission or omission, it remains until overcome by countervailing proof, and whether it is overcome is a question of fact for the jury: Spear v. Phila., Wilmington & Baltimore R. R. Co., 119 Pa. 61; McCafferty v. Penna. R. Co., 193 Pa. 339; ” Kane v. Philadelphia, 196 Pa. 502; Burger v. Philadelphia, 196 Pa. 40. Whether the plaintiffs knew of the defective condition of the street, and whether they should have taken a more safe, even if a longer, route, was fairly submitted under proper instructions to the jury. They would not be chargeable with contributory negligence in using a public street if they did not know that it was in an unsafe condition. If she knew it was torn up at this point she was required to use more than ordinary care, otherwise not: Altoona v. Lotz, 114 Pa. 238; Douglass v. Monongahela City Water Co., 172 Pa. 335; Smith v. New Castle, 178 Pa. 298; Mintzer v. Hogg, 192 Pa. 137. The husband was not entitled to recover the specific amount his daughter received as wages in a factory simply because the mother desired or required her attendance as a nurse, but as [413] this error is clearly defined by the verdict, to wit: “ Twenty-one dollars for lost services of daughter at factory,” it can be remedied by this court without the necessity of a retrial of the case: Connellsville Borough v. Hogg, 156 Pa. 326; Isaac Joseph Iron Company v. Richardson, 2 Pa. Superior Ct. 208. The amount of $21.00 erroneously allowed to Frank P. Dormer is now deducted, and the verdict in his favor is reduced to $48.00. With this modification the judgment is affirmed.