Wingrove v. Central Pennsylvania Traction Co. , 237 Pa. 549 ( 1912 )

Opinion by

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 thrown down and severely injured. The case was tried twice in the court below. The second trial resulted in á verdict for the plaintiff, Sarah Wingrove, in the sum of $4,500, and for W. G. Wingrove in the sum of $300. A motion for a new trial was made by defendant, which for some unexplained reason was not disposed of for nearly three years. On February 27, 1912, the court below made an order requiring the plaintiff to remit $1,500 of the verdict in her favor, or submit to a new trial. A remittitur was filed reducing the verdict to $3,000, and judgment was entered thereupon. Defendant has appealed.

The paper book presented in behalf of appellant does not conform to the rules of this court. Rule 29 provides for an “abstract of proceeding showing the issue and how it was made.” The abstract here presented sets forth extraneous matter. It contains an account of the conviction in the Court of Quarter Sessions of one of the plaintiffs and another person, of conspiracy. Nothing of this appeared in the pleadings or in the evidence, and it is out of place in the abstract of proceedings.

The statement of questions involved is altogether too long, and is-in plain violation of Rule 34.

Taking up the appeal upon its merits, in the first assignment of error, it is alleged that the trial judge erred in excluding the offer by the defendant, of the testimony of two physicians, taken at the former trial. These witnesses then testified that Mrs. Wingrove had suffered a fracture of a rib, or separation of the cartilage from the bony'part of the rib. Upon' the second trial, neither of these doctors was called to’ testify, nor was there any allegation that plaintiff’s'-rib .had been fractured. Defendant offered the testimony of th'd physicians at the former trial, and proposed to follow it with evidence that plaintiff was not in any way suffering from a fractured rib; and this for the purpose of affecting her credibility. Counsel for appellant have cited no authority to support their position that the credibility of the plaintiff can be attacked in this way. If admitted, the evidence would not have contradicted any testimony given on the second trial. It would only have shown that upon the first trial the physicians testified to certain matters which were not mentioned at the second trial. We see no error in the refusal of the offer.

In the second assignment of error it is alleged that the trial judge erred in excluding the offer in evidence, of the record of the conviction of one of the plaintiffs and another, in the Court of Quarter Sessions." The question raised by the offer was not as to the right of the defendant to show the fact of a conspiracy to fabricate evidence, but it was to the admissibility of the record of the Court of Quarter Sessions to establish that fact. We think the learned judge was right in excluding the record for that purpose. In 2 Elliott on Evidence, Section 1525, Note 28, it is said: “Judgments in criminal cases where the State is prosecutor, are generally held inadmissible to establish the facts of a civil case, and vice versa.” In Bennett v. Fulmer, 49 Pa. 155, it was held, as appears from the syllabus, that “The record of a criminal prosecution against defendants for forcible entry and detainer, wherein plaintiffs were prosecutors and witnesses, is not admissible on the trial of the civil action of trespass involving the title to the premises.” In Summers v. Brewing Co., 143 Pa. 114, an action to recover damages for injuries sustained by a child by being run down by defendant’s wagon, it was held, as appears from the syllabus, “The record of a prosecution of the driver for assault and battery, in the Quarter Sessions, instituted by the father and next-friend of the.child, offered to show that at the trial' thereof there was no contention that the driver was asleep when the accident occurred, was irrelevant to the issue and properly excluded.”

The third assignment of error is to the refusal of the trial judge to permit defendant to show that the plaintiff, W. G. Wingrove, was the same person who was convicted of conspiracy. We have held that the record in the conspiracy case was properly excluded, and this offer was for the same reason properly refused.

In the fourth assignment, complaint is made that the trial judge erred in his charge to the jury, in suggesting that the failure of the plaintiff, Mrs. Wingrove, to make complaint to the conductor of the car at the time of the acident, might have been due to the pain and suffering she was undergoing, although she had given no such explanation when on the witness stand. It does appear from the evidence that Mrs. Wingrove testified that she could not remember very much that happened after she got in the car; that when the conductor came around a passenger took her purse and paid her fare for her; and that she was assisted home. On cross-examination she said further that when she reached her home after the accident, she was suffering pain over her whole body. We think this testimony was sufficient to warrant the suggestion of the trial judge that the plaintiff’s condition may have prevented her making complaint to the conductor. He left the matter for the jury to determine. •

In the fifth assignment of error complaint is made that the trial judge instructed the jury that they might find a verdict in favor of the plaintiff, Mr. Wingrove. The objection made to this instruction is that Wingrove was not present at the trial, nor was he called as a witness. It is argued that his absence was a fact which in itself justified an inference against the plaintiff, unless it was explained. Granting that this may be true, yet the inference was one for the jury to draw. If the defendant desired specific instructions as to this matter, a point should have been drawn and submitted. This was not done.

The sixth assignment alleged error in the refusal of the defendant’s seventh point, which assumed the admission in evidence of the testimony of two physicians as set forth in the offer, whose exclusion was specified as error in the first assignment. As we have held that there was no error in the exclusion of that testimony, it follows that the seventh point was properly refused.

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