Opinion
November 15, 1957.
January 21, 1958.
Negligence — Automobiles — Bus — Pedestrian crossing road not at intersection — Evidence conflicting — Contributory negligence — Charge to jury — New trial — Conduct of counsel and witness — Verdict against weight of evidence.
1. In an action for injuries sustained by plaintiff when he was struck by defendant's bus as he was crossing a road, in which it appeared that plaintiff contended that he was in full view of defendant as plaintiff started to cross the road, and that defendant suddenly and without warning started his bus and struck plaintiff; that defendant claimed that the bus was moving at the time that plaintiff undertook to cross the road and that plaintiff recklessly and negligently walked into the left front side of the bus; that on conflicting evidence the jury found for defendant; and that the court below refused a new trial; it was Held that the order of the court below should be affirmed.
2. Where it further appeared that according to the finding of the jury the defendant was not guilty of negligence, the court below concluded that it was to be assumed that the matter of plaintiff's alleged contributory negligence was never considered by the jury.
3. It was Held that the court below did not commit reversible error by charging that, while ordinarily contributory negligence is an affirmative defense and the burden of proving it is on the defendant, it is required of the plaintiff that he present a case clear of contributory negligence on his part before he has a right to recover.
4. It was Held, in the circumstances, that the court below did not commit reversible error in charging as to the duty of a pedestrian crossing a highway not at an intersection or regular crossing.
5. It was Held that the court below did not commit reversible error in charging that, in connection with evidence that defendant had failed to furnish his name and address to plaintiff following the accident and to offer the plaintiff assistance, the jury had a right to consider these facts in determining whether or not defendant was negligent but that they were not to be prejudiced or influenced by the defendant's alleged failure to give his name and address or to render assistance.
6. Plaintiff's contention that he did not have a fair trial by reason of frequent arguments between counsel and the conduct of one of the witnesses for defendant was Held, in the circumstances, to be without merit.
7. A new trial will not be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeal, No. 141, April T., 1957, from order of Court of Common Pleas of Washington County, Feb. T., 1955, No. 418, in case of Fred Dean v. James J. Trembley, trading as Trembley's Bus Lines. Order affirmed.
Same case in court below: 11 Pa. D. C. 2d 1.
Trespass for personal injuries. Before WEINER, J.
Verdict for defendant and judgment entered thereon. Plaintiff appealed.
Paul N. Barna, for appellant.
Charles G. Sweet, for appellee.
Argued November 15, 1957.
The order of the court below is affirmed on the opinion of Judge WEINER, as reported in 11 Pa. D. C. 2d 1.