Kahn v. Quaker City Cab Co. , 264 Pa. 510 ( 1919 )

Opinion by

Mr. Justice Kephart,

The appellee, a passenger in a taxicab owned and operated by the appellant’s servants, was injured when it collided with a tree near the crossing of Sixty-second and Arch streets, West Philadelphia. The appellant admitted liability for the injuries sustained by the plaintiff, but objected to the manner in which the case was tried and assigns as error the action of the court on its motion for a new trial. We have carefully read the evidence and the charges, and it is not clear to us how the court could have done otherwise than refuse the motion. There is nothing on record indicating an abuse of discretion. There is no exception to the evidence of Dr. Paul, who expressed the opinion that epilepsy and convulsions may have resulted from the accident, and there was some evidence upon which to base that opinion.

We do not have before us the language used by the appellee’s counsel in his address to the jury and we are in no position to judge the effect it might have had. The trial judge héard it, and when he refused a new trial, this matter was given due consideration. Had the appellant felt the instruction with respect to the diminution of earning power was erroneous, it should have excepted to this portion of the charge; but when the trial judge, at the conclusion of the charge, requested counsel to suggest anything he had omitted, or any correction desired made, appellant’s counsel was silent. We have frequently called attention to counsel’s duty, when such requests are made. It is now too late to complain. The same may be said of the objection to the court’s instructions as to the value of opinion evidence in that it was based on an examination made long after the accident. Whatever value these objections might have to the appellant if properly brought on the record by way of an exception and an assignment of error, need not be discussed. They do not present sufficient grounds to convict the court of an abuse of discretion in refusing to grant a new trial.

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