Indian v. Delaware, Lackawanna & Western Railroad , 262 Pa. 117 ( 1918 )

Per Curiam,

On the trial below the defendant ashed that a verdict be directed in its favor, but on this appeal admits that the case was for the jury.

Appellant’s first contention is that there was a variance between the allegata and probata. The variance,- if any, was very slight. Mary A. Indian and her daughter both testified, without objection by the defendant, to the condition of the carpet on the floor of the car, and the mother was cross-examined as to this. No formal objection to the variance was raised at the time of the trial, and, as the case proceeded on its merits, with no motion for a nonsuit or a continuance by the defendant, it cannot now, after a verdict and judgment against it, complain of the alleged variance: Carter v. Henderson & Company, Ltd., 224 Pa. 319; Herrlein v. City of McKeesport, 247 Pa. 277.

Appellant’s second complaint is of testimony admitted and excluded. The assignments relating to this disclose no substantial injury to the defendant, which was the actual or probable result of the errors complained of, and the said assignments are, therefore, dismissed: City of Allegheny v. Nelson et al., 25 Pa. 332; Trego v. Pierce, 119 Pa. 139.

The third complaint is of the inadequacy of the charge on the questions of negligence and the measure of damages. The jury were instructed that the negligence of which the appellees complained was the failure and neglect of the defendant company to construct and maintain the floor, threshold and carpet in a reasonably safe condition in the passenger car in which Mrs. Indian fell, and the instruction to them was that it was the duty of the defendant company, as a common carrier, to maintain its cars in a reasonably proper manner. This, taken in connection with the answers to plaintiffs’ first and second points, made it most clear to the jury what would have constituted negligence in the matter of which complaint was made.

The complaint that the court erred in its instruction on the measure of damages, because there was no testimony as to the age of Thomas Indian, is sufficiently answered by the following from the opinion of the court below refusing a new trial: “The husband was present at the trial and pointed out by the first witness on the stand. The jury had ample opportunity during the four days of the trial to form its own opinion of his age, if this was required. The defendant having gone to trial and taken its chances of a verdict without objection to what it deemed a lack of evidence as to the question of the husband’s age and expectancy, it has by so doing waived its right to now object. If it had objected at any proper time the wife and daughter might have testified to the age of the husband and father. He could not have testified very well on account of his defective hearing.”

The final complaint of the appellant of remarks made by counsel for the plaintiffs as to the probability of the time Mrs. Young would live is also without merit. If they were improper, there was no request for the withdrawal of a juror nor for instructions to the jury as to their impropriety.

All of the assignments are overruled and the judgment is affirmed.