Safe Deposit & Trust Co. v. Motheral , 1898 Pa. Super. LEXIS 73 ( 1898 )

Opinion by

Smith, J.,

This case involved only questions of fact, and was exclusively for the jury. There was no principle of law or practice raised on the trial, and none is presented or discussed in the paper-books. The action was assumpsit for material furnished in the repair of a building. The evidence was conflicting, but related solely to the question of liability thus raised. The assignment of errors pertains to remarks of the court in the charge, with reference to a question not material to -the issue. Whether a mechanic’s lien might have been filed was immaterial. This is practically conceded by the learned counsel for the appellant. But it is argued that inasmuch as what the court said on this point did not agree with the statement of the defendant to the plaintiff’s agent on the same subject, it may have indirectly cast doubt on the defendant’s credibility in the minds of the jury. That the part of the charge embraced in the specifications may have been erroneous, considered as an abstract proposition, may be conceded, but it does not follow that it was incorrect under the facts of the present case. We do not feel called upon to analyze or discuss that question. Under the instruction of the court it was removed from the consideration of the jury as having no bearing on the case. It is but reason.able to assume that the jury desired to know whether the failure of the plaintiff to file a lien had any bearing on the question of the defendant’s liability. The answer of the court wholly eliminated the matter inquired about from their consideration. There was no exception made on the question of credibility or on any other branch of the case, and there is no ground to assume that the jury disregarded the answer. Under this instruction of the court they were enabled to more closely consider the question submitted for their determination.

We have thus briefly examined the appellant’s subject of complaint; but the cause is ruled by familiar principles of practice. Where the appellant has failed to show, in an affirmative manner, that error was committed on the trial, which was material to the issue, an appellate court will not reverse. “ To justify a reversal of a judgment, after a trial, it must be made apparent from the record, not only that an error has been committed, but that it materially injured the rights of the party complaining:” Allegheny v. Nelson, 25 Pa. 332. Many other cases might be cited to the same effect.

Judgment affirmed.