Fearl v. Hanna , 129 Pa. 588 ( 1889 )

Pee Cubiam:

The first specification of error is not sustained. The service of the writ was regular upon its face, and if there was any cause why it should be set aside, I have not been able to find it in the plaintiff in error’s paper book; nor does any exception appear to have been taken to the ruling of the court below upon this point.

The second specification alleges that the court below erred in not instructing a verdict for the defendant, in accordance with the prayer of defendant’s first point. It is quite possible that a verdict in his favor would have met the substantial justice of the case, but we do not think the court below would have been justified in directing it. There were questions which were properly for the jury. The third specification is not in accordance with the rules of court.

The fourth and last specification contains an extract from the general charge which the defendant contends is error. We do not think so. The court could not say, as a matter of law, that the plaintiff’s delay in giving notice of defects in the machinery would bar her right to recover. The learned judge said, in this connection: “Fairness to the defendant would seem to require earlier notice of defects; yet it depends greatly on the time when the plaintiff first became fully aware of the defects in the machinery, and other circumstances concerning the case. If you find the plaintiff’s delay was without justification, you may find for the defendant; otherwise, your verdict should be for the plaintiff.” This was as favorable to the defendant as he had a right to expect. If he has any cause to complain, it is of the jury, not of the court.

Judgment affirmed.