52 A.2d 214
Supreme Court of Pennsylvania.March 26, 1947.
April 14, 1947.
Practice — Trial — Charge — Exceptions — New trial.
In an action for personal injuries, in which it appeared that plaintiff complained of errors in the charge of the trial judge to which he had taken no exceptions, it was Held that a new trial was properly refused.
Argued March 26, 1947.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 26, March T., 1947, from judgment of C. P., Allegheny Co., Oct. T., 1945, No. 803, in case of Louis Leventis v. Kaufmann Department Stores, Inc. Judgment affirmed.
Trespass for personal injuries.
The facts are stated in the opinion, by MARSHALL, J., of the court below, MARSHALL, THOMPSON and McDONALD, JJ., as follows:
Plaintiff was walking east on the south side of Fifth Avenue in the City of Pittsburgh, when attempting to cross an alley between the Frick and Carnegie
Page 399
Buildings, east of Kaufmann’s store, and was struck by one of Kaufmann’s trucks traveling east on Fifth Avenue and making a right turn into the alley. The jury returned a verdict in favor of defendant.
Plaintiff seeks a new trial because of basic and fundamental errors committed by the trial judge. Counsel for plaintiff contends that the court failed to enlighten the jury as to what facts would constitute negligence on the part of the truck driver. They also contend that the court failed to instruct the jury as to the duty of a truck driver in making a right turn in a thickly populated business district of a large city, and that no mention was made of his duty to keep a sharp lookout ahead or be able to stop his truck at the slightest intimation of danger, and that the court also failed to instruct the jury upon whom rested the burden of establishing contributory negligence. They contend that the court erred in failing to instruct the jury as to the quantity and quality of evidence or make any mention of disinterested witnesses or the weight to be given their testimony, and that the court erred in charging the jury “. . . if the driver had started to make the turn into the alley and the pedestrian would start to cross ahead of him and was struck, then even though you find the driver of the truck was negligent, the pedestrian himself was guilty of negligence, and if both were guilty of negligence there cannot be any recovery.” There are a number of other allegations that the charge of the court was erroneous.
At the conclusion of the charge, the court asked:
“Any corrections, or anything I omitted?
“Mr. Hilldorfer: I would like an exception to your statement as to the X-rays taken at the direction of Dr. Rosen, particularly as to the sacroiliac joint. I think you stated in your charge they were examined by Dr. Wakefield, that he examined those X-rays and found no separation. He examined the X-rays at the Montefiore Hospital, and not Dr. Rosen’s X-rays.
Page 400
“The Court: Yes, I did. That was my recollection, that he examined the X-rays of the right sacroiliac joint and found no separation, when that question was specifically asked. If that is wrong, the jury will take their own recollection of the testimony as to that. Exception granted.”
There was no other exception taken to the charge. New counsel having entered the case, we have studied the charge very carefully and have reached the conclusion that plaintiff’s motion for a new trial must be refused.
Plaintiff appealed.
J. Thomas Hoffman, with him William D. Hilldorfer, for appellant.
J. Roy Dickie and Dickie, Robinson McCamey, for appellee, were not heard.
PER CURIAM, April 14, 1947:
The judgment of the court below is affirmed upon the opinion of Judge MARSHALL.