Philadelphia & Trenton Railroad v. Hagan , 47 Pa. 244 ( 1864 )

The opinion of the court was delivered, by

Thompson, J.

We have looked closely into this record, because it seems to us, upon the whole evidence, such a verdict was scarcely justifiable. We are not, however, able to discover any solid ground for the reversal of the judgment. Doubtless there were features or characteristics apparent in the trial, not perceptible to us now, otherwise it is presumable the learned judge below would have set aside the verdict and granted a new trial. Be that as it may, we have only to deal with the assignments of error now before us.

The first and second specifications are not sustained. The court, we think, could not have negatived the points out of which they arise without error. It is true, there is an assumption in the fourth point that the injury to the deceased occurred at the crossing of the railroad over a public street or highway. But if this had not been true in fact, it is difficult to understand why the attention of the court was not called to it, with a request to charge on the true state of facts in that particular, or at least on the defendants’ hypothesis in regard to it. This was so obviously the duty of the defendants’ counsel, and their experience such, that it strengthens much the argument, that the assumed fact was exactly true. In looking carefully at the testimony, we cannot say that there was an absence of evidence, as contended for by the counsel for the plaintiffs in error, on this- very point, so as to justify a reversal of the case for a direction, without evidence to sustain it. As a general rule, it may be stated that if a fact be assumed in a point, a court commits no error by affirming the point, and referring the question of fact to the jury. This is an affirmance of the law, and a reference of the fact to the proper tribunal. Here the objectionable expression in the point was so intermixed with the question of law propounded, that it was not separated from it in the answer; but the fact alleged was referred to the jury on the point of the duty of care, and the consequences of its omission, by both the company and the deceased. There was therefore no error in thus disposing of the point.

It has often been held that it is not error in a judge to refuse to charge on the effect of a given state of facts, when the very facts are in dispute: 1 S. & R. 176; Id. 515; 8 Id. 210. We think, therefore, that the refusal to charge as requested in the defendants’ first point, was not error, and that the court discharged their duty in referring the contested point therein contained to the jury. It was a controverted question whether there was not concurrent negligence on part of the deceased, if negligence had been shown against the defendants. To this point there was much testimony. It was right and proper, therefore, on part of the court, to refrain from giving a binding direction on either side of the controversy; either that there was or was not evidence that the disaster was the result of the sole negligence of the servants of the company. The learned judge referred the inquiry in this particular, with unexceptionable instructions to the jury, in substance, that before the plaintiffs would be entitled to recover, it must be made to appear that the injury resulted from the negligence of those in charge of the train, and not from the concurrent negligence of the deceased with that of the servants of the company. We see no error in any portion of the instructions given to the jury, and hence we must affirm this judgment.

Judgment affirmed.

Woodward, C. J., was absent at Nisi Prius when this case was argued.