Clay v. Western Maryland Railroad , 221 Pa. 439 ( 1908 )

Opinion by

Mr. Justice Elkin,

When an appellant in a negligence case deems it necessary to specify forty-four assignments of error, the reasonable inference is that the case was either very well tried, or very poorly tried, in the court below. If there is anything in the record to justify the numerous assignments, the case must indeed have been carelessly and indifferently presented and considered at the trial. On the other hand, it may be, that the case was so well tried that the learned counsel for appellant, finding it difficult to assign any material and reversible error, have concluded to strengthen a weak case by making a formidable array of assignments. After a careful consideration of the whole record we have concluded that the latter is the proper inference to draw in the present case, which was presented and defended by capable and able counsel, and every objection and motion made on either side, all points submitted, and the rulings of the learned trial judge clearly show that the cause was tried with more than ordinary skill and care. The record is a demonstration that not only the court, but counsel on both sides, knew the law and carefully applied it to the facts of the case. The assignments are so numerous as to be suggestive of firing at random in the bushes in the hope that a stray shot might produce a favorable result. Well directed aim is better marksmanship and, as a rule, more satisfactory to the marksman. At the argument, it occurred to the writer of this opinion that if the defendant company had a right to the joint use of the track, and the train collided with was rightfully on the leg of the wye at the time of the accident, no negligence could be imputed to it for doing what it had a right to do. On consideration, however, it is clear this view loses sight of the fact that the arrangement for the joint use of the track was subject to the rules and regulations governing that joint use, and if the defendant company failed to comply with the rules to which the joint use was subjected, of which proper guards and protection to a standing train was one, there could be a recovery of damages because of failure to perform its duty in this respect. As to negligence of the defendant, and the contributory negligence of the plaintiff and his fellow servants, we are all of opinion that it was a case for the jury and that there was no reversible error committed in its submission.

The first assignment seeks to convict the learned trial judge of error in refusing to permit an examination of jurors on their voir dire to determine whether any of them were employees or stockholders of the Reading Railway Company. There was nothing in the record to show that this company was interested in, or was in any way connected with this litigation, or that it would be affected by any verdict that might be rendered. In such matters something must be left to the sound discretion of the trial judge who is always presumed to act in good faith, and refusal to permit .such a preliminary examination will not constitute reversible error where, as in the present case, there was nothing to show that the result of the inquiry, if allowed, would afford any ground of challenge for cause, or show such an interest as would disqualify a juror, or that the jurors had formed an opinion, or had any bias, or relationship, or had such a connection with the parties, or the subject-matter of the controversy, as to affect their impartiality. It must not be overlooked that the purpose of the inquiry was not to discover whether the jurors had any interest in the case, or were connected in any manner with the parties to the controversy, or that they had any bias, or had formed any opinion on the question involved, but it was directed to the single purpose of ascertaining whether they were stockholders or employees of another railroad company. Under these circumstances the rule of Comfort v. Mosser, 121 Pa. 455, does not apply. In this connection, it may be remarked, that the better practice is to allow a general inquiry as to the direct or even contingent interest of jurors, in the result of the litigation, or in the parties to it, when there appears to be any reasonable ground to believe that some of them may have a possible interest in the result of the litigation, or in the parties, in order that an impartial jury may be selected, free from bias or interest. However, failure to do so will not. constitute reversible error, unless established rules of law are violated, or cause for challenge be shown, or the right to show bias or interest of the jurors be denied, or inquiry into such material facts as might interfere with the selection of an impartial jury be refused.

Under the second assignment, it is contended the Act of March 24, 1877, P. L. 38, imperatively requires all points and answers to be read to the jury, and that failure to do so is reversible error. All of the points submitted by the defendant were correctly answered in writing by the court, but those answered in the negative were not read to the jury, and this court has said in several cases that this is not required: Kroegher v. McConway & Torley Co., 149 Pa. 444; Kreamer v. Smith, 187 Pa. 209; Carey v. Buckley, 192 Pa. 276. The points affirmed, and the answers thereto, were read to the jury, while those refused were answered in writing but not read to the jury. All of the points, affirmed or refused, together with the answers thereto, were filed by the learned trial judge and did become a part of the record in the case. This seems to be the established practice throughout the commonwealth, and is all that is required under the rule of our cases.

Assignments of error overruled and judgment affirmed.