McMillen v. Strathmann , 264 Pa. 13 ( 1919 )

Opinion by

Mr. Justice. Walling,

This is an action of trespass for personal injuries. At the time in question John McMillen was five and one-half years of age and resided with his parents in Philadelphia on the west side of Amber street, which was of the width of forty feet with a paved cartway twenty feet wide in the center thereof. On the afternoon of November 19, 1917, John left his yard and ran across the street to the east curb where there was another small boy, and then turned and ran back across the street and as he did so was struck by a northbound autocar truck owned by Henry E. Strathmann, now deceased. The truck was heavily loaded with sand, and the boy was so injured that he died in six days. This suit brought before his death, alleged negligence on behalf of the driver of the truck. The appeal is by plaintiff from judgment entered on a verdict for the defendant. We find no error, in the record. Unfortunately the child ran in front of the truck when it was close upon him, but the evidence tending to show negligence of the driver was very meagre. The truck was not running more than ten or twelve miles an hour and was stopped within less than its length. Jt was some forty feet away when the boy first crossed the street and there is no contradiction of the driver’s evidence that he then sounded his horn. Although required to use care he was not bound to anticipate that the boy would run back across the street in front of the truck, but when he attempted to do so the driver turned to the left and tried to avoid the accident. It was in the middle of the block and no other vehicle near, and the trial judge properly instructed the jury that the driver was not compelled at all times to run so slowly that he could stop instantly, but that it was his duty to bear in mind that children are apt to run into the street and to keep his machine under control so as to be able to stop in a reasonable time in an emergency, and in effect that if he saw the danger in time he should have so controlled his car as to stop and avoid the accident. The instruction was also proper that the burden of proof was upon plaintiff and that defendant was not liable unless the evidence convinced the jury that the accident resulted from the driver’s negligence, and unless he neglected something he should have done there could be no recovery. The only evidence that might seem to suggest negligence was as to the speed of the truck and failure to stop in time to avoid the accident, so the affirmance of defendant’s third point, “Unless you find that the automobile truck of the defendant was being driven at the time of the accident at an excessive and dangerous rate of speed or that the boy was standing or playing in the roadway a sufficient length of time for the driver to have seen him and stopped, then the verdict must be for the defendant,” was not error.

There was some divergence in the evidence as to how near the truck was to the boy when he started back across the street; statements of witnesses as to that vary from perhaps five to twenty-five feet. John A. Ball testifies as to that and other distances, and in commenting upon his testimony the trial judge was in error in one or two particulars; but his attention was not called thereto at the time and it is now too late. “A party may not sit silent and take his chances of a verdict, and then if it be adverse, complain of a matter which if an error would have been immediately rectified and made harmless”: Commonwealth v. Razmus, 210 Pa. 609; Nowlis v. Hurwitz, 232 Pa. 154; Reznor Mfg. Co. v. B. & L. E. R. R., 233 Pa. 369. The charge did not minimize plaintiff’s evidence nor unduly magnify that for the defendant; and, as it is not quoted in the assignment of error, we cannot consider the complaint that it was inadequate. As the verdict was for the defendant, instructions going only to the amount of damages become immaterial.

Plaintiff asked his witness, Charles H. Paul, as to a conversation between himself and defendant’s driver, objection to which was sustained. Such conversation was competent- if part of the res gestae and material to the case. The circumstances were not brought out so as to show whether it was a part of the occurrence or the narration of past events; if the latter it was not competent. “If......the transaction is complete and ended, its ending marks the limitation of the res gestae of the event, and declarations subsequent thereto become merely narrative of past matters”: from opinion by Mr. Justice Frazer in Leonard v. Balt. & Ohio R. R. Co., 259 Pa. 51, 59. There was no statement or offer as to the nature of the proposed conversation; the trial judge did not know nor do we that it was relevant to the case. As the driver, who was a witness for the defense, was not asked in cross-examination about such conversation we may assume that it did not differ materially from his testimony.

We have not found it necessary to consider appellee’s contention that a verdict should have been directed for the defendant.

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