Wingrove v. Central Pennsylvania Traction Co.

• Decision Date: 14 October 1912
• Docket Number: 9
• Parties: Wingrove v. Central Pennsylvania Traction Co., Appellant
• Court: Pennsylvania Supreme Court

85 A. 850

Wingrove v. Central Pennsylvania Traction Co., Appellant

237 Pa. 549

No. 9

Supreme Court of Pennsylvania

October 14, 1912

Argued May 21, 1912

Appeal, No. 9, May T., 1912, by defendant, from judgment of C.P. Dauphin Co., Jan. T., 1906, No. 462, on verdict for plaintiffs in case of Sarah Wingrove and W.G. Wingrove v Central Pennsylvania Traction Company. Affirmed.

Trespass to recover damages for injuries to a married woman. Before KUNKEL, P.J.

The abstract of proceedings was as follows:

Action in trespass against the Central Pennsylvania Traction Company, defendant, by Sarah Wingrove and W. G. Wingrove, her husband, plaintiffs, for injuries alleged to have been suffered by Mrs. Wingrove by the negligent starting of defendant's car while she was attempting to get on. Defendant pleaded not guilty.

Upon trial, verdict in favor of Sarah Wingrove for $2,200 and in favor of W. G. Wingrove for $1,000. Motion for a new trial made. Pending motion, W. G. Wingrove, plaintiff, and O. Z. Shaver, one of plaintiff's witnesses were, in No. 90, March Sessions, 1907, convicted of conspiracy to fabricate testimony, and to procure and offer false evidence in the case; Shaver being sentenced to imprisonment to one year and W. G. Wingrove to pay a fine and costs. Following these proceedings, the pending motion for a new trial was granted, and trial had, with verdict in favor of Mrs. Wingrove for $4,500, and in favor of the husband for $300. Motion for a new trial was made, and a new trial ordered unless Mrs. Wingrove should file a remitter for $1,500 of the amount of the verdict in her favor. Remittur having been filed judgment was entered on the verdict for its amount, less the amount remitted, and this appeal taken.

The statement of questions involved covered a page and a quarter of closely printed matter divided into four lengthy paragraphs.

At the trial the defendant made the following offer:

"Mr. Bergner: We propose to offer in evidence the testimony of Doctor Dailey, and the testimony of Doctor Gilbert, offered at a former trial of this case, showing that this woman was suffering from a fractured rib, which had not re-united, and the same constituted a permanent injury; that to be followed by the evidence that she was not suffering from a fractured rib of any kind. This for the purpose of affecting the credibility of the plaintiff, Mrs. Wingrove, and the integrity of her case as presented on the second trial.

"Mr. Beidleman: We object to that, if the court please, as being an improper way of attacking credibility; being irrelevant, immaterial, inadmissible and incompetent." Objection sustained. Exception (1).

"Mr. Bergner: We propose, may it please the court, the witness on the stand having testified as to the efforts to subpoena W. G. Wingrove, one of the plaintiffs in this case, and in view of the fact, that W. G. Wingrove, one of the plaintiffs in this case, is absent from the court room, and has been absent during the trial of this case, to offer evidence, by the witness on the stand, to show that W. G. Wingrove, plaintiff in this case, and O. Z. Shaver, the person stated by Mrs. Wingrove, the other plaintiff in the case, to have been the person who assisted her onto the car at the time of the accident; and the same person who testified on the former trial of this case, that he had assisted Mrs. Wingrove after the accident to get on the car; the said Wingrove and Shaver are the same persons who were convicted in the Court of Quarter Sessions of Dauphin County to No. 90, March Sessions, 1907, of conspiracy to fabricate testimony, and to procure and offer false evidence in this case; to wit: the case of Wingrove and wife against the Central Pennsylvania Traction Company. This for the purpose of affecting a bona fides, and showing the absence of integrity in the case of the plaintiffs, husband and wife, against the Central Pennsylvania Traction Company.

"Mr. Beidleman: This is objected to as being incompetent, inadmissible and irrelevant; and, further, that Shaver has not been offered as a witness in the case; whereby an attempt upon his credibility cannot be admissible.

"Mr. Bergner: This to be followed by the record of the Court of Quarter Sessions of Dauphin county, showing the conviction of O. Z. Shaver and W. G. Wingrove for conspiracy to fabricate testimony with respect to the case on trial now.

Objection sustained. Exception (2).

The court charged in part as follows:

["But before we come to that, gentlemen of the jury, on the other point which we have left, I call your attention -- and you will give it just such weight as you think it is entitled to -- to the absence of any complaint on the part of Mrs. Wingrove, at the time the accident occurred. She says she was helped to her seat in the car. The conductor was at the head of the car, coming down, and took her fare. It was paid by a man by the name of Shaver, who had helped her onto the car, out of her purse, and it does not appear that any complaint was made by her at that time, to the conductor, or anything said by her to the conductor that she had been injured, or that any accident of any kind had occurred. You will consider what effect that has upon the question of how the accident occurred. Was that due to the pain and suffering she was then undergoing, or was it due to some other cause? You will have to determine how that was."] (4)

["When you render a verdict, if you find in favor of the plaintiffs, you will find for the plaintiff, Mr. Wingrove, so much; being guided by the measure of damages to which we have just referred."] (5)

Verdict for Sarah Wingrove for $4,500 upon which judgment was entered for $3,000, all above that amount having been remitted.

Verdict for W. G. Wingrove for $300 upon which judgment was entered. Defendant appealed.

Errors assigned were (1-3) rulings on evidence quoting the bill of exceptions; (4, 5) above instructions quoting them.

The assignments of error are all overruled, and the judgment is affirmed.

C. L. Bailey, of Wolfe & Bailey, with him C. H. Bergner, for appellant. -- The record of the criminal conviction was admissible: McHugh v. McHugh, 186 Pa. 197; Egan v. Bowker, 87 Mass. 449; Dundas' Est., 213 Pa. 628; Ginder v. Bachman, 8 Pa. Superior Ct. 405; Com. v. Brown, 23 Pa.Super. 470; Howell v. Hartford Fire Ins. Co., 12 Fed. Cases 700, Case No. 6780.

E. E. Beidleman, for appellees.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE POTTER:

This was an action of trespass brought by Sarah Wingrove and W. G Wingrove, her husband, to recover damages from the Central Pennsylvania Traction Company, for injuries alleged to have been sustained by Mrs. Wingrove by reason of the negligence of the defendant. Mrs. Wingrove alleged that on August 19, 1905, as she was boarding a car of the defendant company in the city of Harrisburg, it was prematurely started, and she was...