Killeen v. Delaware, Lackawanna & Western Railroad , 270 Pa. 123 ( 1921 )

Per Curiam,

On the evening of January 12, 1917, plaintiff, while walking through the aisle of one of defendant’s cars, on which he was a passenger, fell and was injured. The gravamen of his complaint is that as the car was not lighted he tripped over some unknown obstruction, suffered to remain in the aisle. The case was submitted to the jury, who found for defendant. The only errors assigned by appellant (plaintiff) relate to the charge of the trial judge. As plaintiff submitted no requests and remained silent when the trial judge asked if anything had been omitted from or misstated in the charge, he cannot now raise minor objections thereto, and we find no substantial ground of complaint. The charge adequately covered the case and it was not error to instruct the jury, in effect, that the allegata and probata must agree. Appellant’s complaint was that he was injured by falling over an obstruction in the aisle, which the darkness prevented him from seeing, and the weakness of his case was lack of evidence to show such obstruction. Possibly he might have averred his fall as the result of the darkness; but as he chose to base it upon an obstruction in the aisle, it was not error to charge the jury that the burden was upon him to prove the existence thereof.

The judgment is affirmed.