Rosevere v. Borough

Opinion by

Mr. Justice Green,

After a most close and patient reading of the charge of the learned court below and the answers to points, in the light of the criticisms made in the several assignments of error, we are quite unable to discover the least cause for reversal upon any of the specifications. The legal principles applicable to the facts in evidence, were stated and presented by the court with such entire correctness and fairness that not a single assignment is made to any part of the charge in that regard. The case involved nothing but matters of fact and was exclusively for the determination of the jury. As a matter of course it could not be withheld from them, and it Avould have been the gravest error to do so. The fifth assignment therefore cannot be sustained.

The first three assignments involve only the general comments of the court on the character of the testimony as being affirmative on the part of the plaintiff, and of a negative quality on the part of the defendant. These comments are precisely such as any judge would naturally and properly make when explaining these different kinds of testimony to the jury, and they were strictly correct. They exhibited no bias in favor of either party and we cannot at all agree that they either did, or tended to, belittle the character or effect of the defendant’s testimony.

The fourth assignment is subject to the same observations. The judge merely stated the fact that the plaintiff and some of her near relatives testified to the existence of a hole in the sideAvalk at the place of the accident, and that a witness who was disinterested testified that he saw Avhat he supposed was the body of a woman in a prostrate condition on the sidewalk at that point. When he added the remark that this Avas strong evidence he gave the reason for it that it came from an independent source. That was entirely correct and we think it justified the remark.

The sixth assignment cannot be sustained. The court affirmed the defendant’s second point as requested and was right in saying, “ It is not a question whether all passers-by actually noticed the defect but whether it was noticeable.” That is to say the rule as to the defect being of such a character as to be of itself notice to the authorities, does not require that every passer-by did actually notice it, but that they might have noticed it if they had consciously seen it. That is what would be indicated by the word “ noticeable,” capable or susceptible of being noticed. Several persons had testified, positively to the fact of having seen the hole for some time before the accident. A number of others had testified that, having good opportunities of observation, they did not see it. All of which might be perfectly true and j^et the hole might have been there. Now if the hole was of such a character as to be noticeable to those who looked, it is all the law requires and that is all the court said.

Surely there is no error in the answer to the defendant’s third and fourth points. Both were affirmed without any qualification except the remark that all the facts in testimony were entirely for the jury, and that is precisely what the points asked the court to sajq that is, that the facts referred to in the points were proper to be considered by the jury. The court simply added the remark that the testimony referred to was important and the jury should consider it with all the other testimon3r in arriving at a verdict. All this was entirely correct.

There was no error in allowing proof to be made that advice was taken of counsel about a year after the accident, as it tended to disprove a serious charge that was made against the whole of the plaintiff’s case, to wit, that it was an afterthought, and without integrity. It is just as the court said, that the plaintiff might not have intended to bring a suit at first nor until after she had advised with counsel. The injury was not, apparently, very serious at first and she might well have hesitated until after it took on a graver aspect. We cannot sustain any of the assignments.

Judgment affirmed.