Freeman v. Wilkes-Barre & Wyoming Valley Traction Co.

• Decision Date: 20 April 1908
• Docket Number: 51-1908
• Citation: 36 Pa.Super. 166
• Parties: Freeman v. Wilkes-Barre & Wyoming Valley Traction Company, Appellant
• Court: Pennsylvania Superior Court

36 Pa.Super. 166

Freeman v. Wilkes-Barre & Wyoming Valley Traction Company, Appellant

No. 51-1908

Superior Court of Pennsylvania

April 20, 1908

Argued March 4, 1908

Appeal by defendant, from judgment of C.P. Luzerne Co.-1905, No 284, on verdict for plaintiff in case of Aaron Freeman v Wilkes-Barre & Wyoming Valley Traction Company.

Trespass to recover damages for personal injuries. Before Lynch, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 1,200. Defendant appealed.

Errors assigned amongst others were portion of charge, quoted in the opinion of the Superior Court, and in not withdrawing a juror and continuing the case because of the language used by plaintiff's counsel, and quoted in the opinion of the Superior Court.

Paul Bedford, with him John T. Lenahan, for appellant. -- We claim that the ninth assignment should be sustained upon the authority of Fisher v. Pennsylvania Co., 34 Pa.Super. 500; Hale v. Hale, 32 Pa.Super. 37; Holden v. Penna. Railroad Co., 169 Pa. 1; Walsh v. Wilkes-Barre, 215 Pa. 226; Saxton v. Pittsburg Rys. Co., 219 Pa. 492.

John McGahren, with him D. L. Rhone and D. L. & J.

Q Crevling, for appellee. -- It is peculiarly within the discretionary duty of the trial court to see that the trial is conducted in a legal and orderly manner, and unless this discretion is abused such order is not subject to appeal Com. v. McMahon, 14 Pa.Super. 621-626; Fisher v. Penna. Company, 34 Pa.Super. 500, not yet reported and cited by the appellant, does not apply to the remarks of counsel in this case, they being of another nature.

The case of Hale v. Hale, 32 Pa.Super. 37, are remarks made in disparagement of the parties and, therefore, does not apply.

Walsh v. Wilkes-Barre, 215 Pa. 226, related also to the disparagement of the parties.

Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.

OPINION

BEAVER, J.

A careful reading of all the testimony in this case satisfies us that the questions of the negligence of the defendant, the contributory negligence of the plaintiff and the execution and delivery of the written release of the plaintiff to the defendant were all for the jury and were properly submitted by the court to them. We, therefore, eliminate from the further consideration of the case all of the assignments of error, except the fourth and ninth.

The fourth assignment relates to an observation of the court in the charge, concerning the execution of the written release as follows: " You will observe the plaintiff was able to write, but nothing but his mark is made." This is a detached sentence from the charge of the court, in which the release, alleged to have been executed by the plaintiff, was under discussion. The portion of the charge legitimately relating to this subject was: " If the plaintiff signed the release in the absence of fraud practiced upon him, he is presumed to have known the contents and is estopped from recovering. You observe the plaintiff was able to write, but nothing but his mark was made." It is possible that the remark complained of might have raised a suspicion in the mind of the jury as to the fact of the plaintiff's execution of the release and of a fraud practiced upon him in connection therewith. It would doubtless have been better to have followed that with the remark that a broken clavicle, which is barely alluded to in another part of the charge, might have prevented his attaching his signature to the paper, and such an explanation would have relieved the statement of any approach to a one-sided presentation of the facts. If this were the only thing complained of, it is doubtful whether it would warrant a reversal.

The serious point in the case, however, is the question raised by the ninth assignment of error. It relates to remarks of counsel in their closing address to the jury which, as shown by the record, were as follows: " The doctor in charge of staff would (?) have taken Randolph by the neck and kicked him out. According to Randolph's (agent for defendant) story, if he had any decency or was even human, he would not have done any business with the plaintiff at the hospital. The conduct of this agent was the most brutal and inhuman in my experience. They (Beahl and McKee) are excrescences, a disgrace to the profession they belong to. Of course, if we had the fees for doctors, we could have brought them into court and shown that plaintiff is so bad that he cannot now even hold the lines of his horses." The...