Anthony v. . Poag ( 1915 )

Pee Cubiam.

The issue as to defendant’s liability for plaintiff’s injury was largely one of fact, and, the jury having accepted plaintiff’s version of the occurrence, an actionable wrong is established, and we find no sufficient reason for disturbing the result.

There were facts in evidence tending to show that, shortly after the occurrence, defendant had shown concern for plaintiff’s condition; had left $5 at a drug store for him and taken steps to have him presently removed to his (plaintiff’s) home, and it was chiefly urged for error that the court failed to charge, as requested by defendant, that this conduct should not be considered on the issue of negligence.

While the prayer may, as a general rule and on this record, embody a correct general proposition, we do not think the action of the court concerning it should be held for reversible error, for the reason that we are utterly unable to see that the evidence was used to defendant’s prejudice or that it in any way affected the result.

As a matter of fact, the kindness of the defendant in procuring a physician for plaintiff was brought out on cross-examination of plaintiff by defendant’s counsel, and the considerate conduct of his client was no doubt used to full advantage in the discussion of the issue. It was for this reason, probably, the court ignored the prayer for instructions, and, in doing so, we are unable to see that prejudicial error was committed. After giving the matter very careful consideration, we are of opinion that the judgment should be affirmed, and it is so ordered.

No error.