Goodstein v. King

• Decision Date: 25 November 1929
• Docket Number: 102
• Citation: 148 A. 300,298 Pa. 313
• Parties: Goodstein, Appellant, v. King
• Court: Pennsylvania Supreme Court

148 A. 300

298 Pa. 313

Goodstein, Appellant, v. King

No. 102

Supreme Court of Pennsylvania

November 25, 1929

Argued September 30, 1929

Appeal, No. 102, March T., 1929, by plaintiff, from judgment of C.P. Mercer Co., Oct. T., 1927, No. 182, on verdict for defendant, in case of Betty Goodstein, a minor, by her father and next friend, Samuel Goodstein, v. Minnie King. Affirmed.

Trespass for injuries to child five and one-half years old. Before McLAUGHRY, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were various rulings and instructions, quoting record.

Judgment of the court below is affirmed.

V. J Lamb, of Anderson & Lamb, with him William G. Barker, E. L. Williams and William L. Jacob, for appellant. -- The trial judge invaded the province of the jury when he assumes it to be an established fact that the child came in contact with the left side of the automobile. It was a matter for the jury to determine, under all the evidence, whether the child ran into the automobile or whether it ran into her, and, if it be material, the jury should decide which part of the automobile collided with the child: Fuhr v. Coal Co., 272 Pa. 14; Schmitt v. Kulamer, 267 Pa. 1; Schultz v. Wall, 134 Pa. 262.

In the case at bar, the matters complained of in the charge are basic and fundamental and constitute more than a "mere inadequacy." They constitute errors in law and hence it is contended that a new trial should be granted: Caffrey v. Schwartz, 285 Pa. 561.

T. A. Sampson, of Stranahan & Sampson, for appellee. -- As we view it, the court below would have committed an error had he submitted to the jury the question of the point of contact: Fretton v. Karcher, 77 Pa. 423; Youngman v. Miller, 98 Pa. 196; McFadden v. Rausch, 119 Pa. 507.

Numerous decisions exist establishing a long line of cases holding that counsel should have requested the court below to charge on the matters now alleged to have been omitted: Fox v. Fox, 96 Pa. 60; P. & R.R.R. v. Getz, 113 Pa. 214; Kehoe v. Traction Co., 187 Pa. 474; Kaufman v. R.R., 210 Pa. 440; Roberts v. Traction Co., 270 Pa. 19; McCaffrey v. Schwartz, 285 Pa. 561; Dravo Contracting Co. v. Rees & Sons Co., 291 Pa. 387.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

Plaintiff sues to recover for an injury to his daughter, a minor, caused by a collision with defendant's automobile. The child, playing on the sidewalk when the car approached on the opposite side of the street, suddenly ran across the street and came in contact with the automobile. The car stopped within its length, just as contact took place. Minor injuries were at first discovered, but it is here averred that more serious ones resulted. The case was submitted to the jury, who found for defendant. Plaintiff has appealed, assigning trial errors.

The court charged the jury that the testimony showed that the "child came in contact with the automobile at the side," and that this was the testimony of all the witnesses, "so that it would be your duty to find that as a fact when you have no other testimony contradicting it." The appellant complains of this, and urges that the jury should have been permitted to determine whether the contact was with the side or front of the car. We have carefully read the evidence and it convinces us that the court below was correct in its statement, as it was the testimony of the two witnesses who saw the accident. The charge detailed the evidence of the parties and this statement is merely a repetition of that evidence. Moreover, if appellant was not satisfied with the statement made, the attention of the trial judge should have been called to it at the trial so that, had he so desired, he might have had an opportunity to reform it. It was not error to make the statement (Fretton v. Karcher, 77 Pa. 423); but it was not conclusive of plaintiff's case, as defendant would still be liable had she negligently caused the contact.

The child, being only five and one-half years old at the time of the accident, could not have been guilty of contributory negligence. The court below, in its charge, made no reference to this subject, but plainly told the jury that if they found defendant negligent they should find for plaintiff. Appellant argues that the court below should have...