Diehl v. Ellis

Opinion by Portee, J., The opening sentences of the argument contained in the brief of the appellant frankly state the real question involved in the single assignment of error in this case. “The court was eminently fair in the trial of the case and in the charge given to the jury. The error complained of' was a mistake by the court and the confusing of the testimony of, one witness for the defendant with that of one for the plaintiff.” We have examined the record and testimony in this case and are convinced that the error of the charge of the court in referring to the testimony was entirely inadvertent. The language of the opinion of Chief Justice Mitchell in Commonwealth v. Razmus, 210 Pa. 609, is peculiarly applicable in this case. “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.” This principle has been recognized and followed in numerous later decisions, of which it is only necessary to cite Pennsylvania R. R. Co. v. Donora Southern R. R. Co., 219 Pa. 361; Brown v. Sunbury, Etc., Electric St. Ry. Co., 43 Pa. Superior Ct. 61, and Livingston v. Reich, 54 Pa. Superior Ct. 346. There was in the present case no attempt made to call the attention of the court to its inadvertent mistake in referring to the testimony. In such a case the principle established by the decisions above cited is not to be lightly disregarded, when no sufficient excuse for the failure to call the attention of the trial court to the mistake is made to appear. The assignment of error is overruled,. The judgment is affirmed.