Saxton v. Plttsburg Rys. Co.

• Decision Date: 06 January 1908
• Docket Number: 96,95
• Parties: Saxton v. Pittsburg Railways Company, Appellant
• Court: Pennsylvania Supreme Court

68 A. 1022

219 Pa. 492

Saxton v. Pittsburg Railways Company, Appellant

Nos. 95, 96

Supreme Court of Pennsylvania

January 6, 1908

Argued November 1, 1907

Appeals, Nos. 95 and 96, Oct. T., 1907, by defendant, from judgment of C.P. No. 3, Allegheny Co., Feb. T., 1905, No 824, in case of B. H. Saxton, suing in his own right and as next friend of B. H. Saxton, Jr., v. Pittsburg Railways Company. Reversed.

Trespass to recover damages for personal injuries. Before KENNEDY P.J.

The opinion of the Supreme Court states the facts of the case.

Verdict and judgment for B. H. Saxton, Jr., for $3,000 and for B. H. Saxton, $1,500. Defendant appealed.

Errors assigned were (1, 2) in submitting the case to the jury, and (3-6) in refusing to withdraw a juror and continue the case because of the remarks of counsel quoted in the opinion of the Supreme Court.

The judgment is reversed with a venire facias de novo.

William A. Challener, with him Clarence Burleigh and James C. Gray, for appellant, cited as to remarks of plaintiff's counsel in addressing the jury: Wagner v. Hazle Twp., 215 Pa. 219; Walsh v. Wilkes-Barre, 215 Pa. 226.

F. C. McGirr, with him John Marron, for appellee. -- A judgment on a verdict will not be reversed because of alleged improper and injurious remarks of counsel, where it appears that the verdict was modest in amount, and that the court instructed the jury to disregard the objectionable remarks of Moore v. Neubert, 21 Pa.Super. 144.

Before FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR JUSTICE FELL:

The first two assignments of error relate to the right of the plaintiffs to recover. They cannot be sustained. The boy injured was five years and three weeks of age. While the defendant's car was standing at a crossing, he got on a step of the front platform. The platform was entirely closed by wooden doors with glass windows in the upper panels. He took hold of a horizontal bar fastened to the wood work of the door a few inches below the glass. He testified that after the car was in motion the motorman looked through the glass and saw him and shook the door and caused him to fall. This testimony was denied by the motorman who testified that he did not see the boy or shake the door, and there was testimony that tended to show that the motorman could not have seen him because the wooden part of the door was several inches higher than the boy's head and that the boy while standing on the step was two or three feet back of the position occupied by the motorman. It was not, however, shown that it was impossible that the motorman by change of position or by leaning over could have seen, and the positive testimony of the boy that he did see him took the case to the jury on the ground of negligence in shaking the door when the boy was in a place of danger: Levin v. Traction Co., 194 Pa. 156. The father of the boy was not precluded from recovering because he permitted his son to go on the street in a business part of the city unattended. The boy had gone almost daily to the home of his aunt nearby and had on a few occasions gone with his cousin, a boy sixteen years old, to deliver papers in the street. His parents knew that he had done this once or twice, but did not know that he was in the habit of doing it, and on the occasion of his injury they did not know that he had left his aunt's house or was likely to do so.

The remaining assignments of error may be considered together. They charge misconduct of counsel in addressing the jury. The remarks objected to as being improper are "Now this is what I charge frankly and plainly in this case a suppression of evidence, and by that I ask you twelve men to determine this case, if you have any hesitancy about the conclusion upon the evidence in the case. I ask you in money to make this company, with its earnings, and out of its earnings, out of its millions, for which it is in this business -- it is not a charity, it is not a benevolence, it is a business just as hard and...