Mixel v. Betz , 168 Pa. 328 ( 1895 )

Per Curiam,

We are by no means free from misgivings as to the correctness of the conclusions reached by the jury in this case, but a-motion for a new trial is under the control of the court below. Our business is with the alleged errors in the trial. The exclusion of a question asked of Dr. Stewart is the subject of the first assignment of error, but the exclusion was not excepted to at the trial and no exception has since been allowed. The-offer is, for this reason, not upon the record and we cannot properly consider it. The second is to the statement made by the learned judge in his charge that it was not very material whether the arm was broken and Doctor Betz was applied to in 1890 or in 1891. We see no error in this. The subject to which the attention of the jury was directed was not so much one of date as one of the character and adequacy of the examination made.

The same must be said of the third assignment. There really was no difference of opinion between counsel about the legal principles applicable to the action.

The plaintiff’s right to recover rested on the care or negligence of the defendant. This was a question of fact about which counsel did differ, but on the legal questions the fact that no exception is now taken to the instructions given to the jury upon them, satisfies us that the appellant sees in them nothing of which he can justly complain.

We can sustain neither of the assignments. If the jury reached a mistaken conclusion we have no means for correcting it. The learned judge of the court below seems to have been, satisfied with the verdict and we must be.

The judgment is affirmed.