Kierzenkowski v. Philadelphia Traction Co.

Per Curiam,

The first and second specifications, alleging error in certain portions of the charge quoted therein, cannot be sustained. Considered in connection with other parts of the charge, there is no error in either of said excerpts of which the plaintiff has any just reason to complain. As to the two remaining specifications, it is sufficient to say that there is no merit in either of them. In view of the facts which the testimony tended to prove, the instructions were adequate and free from error. In affirming defendant’s first point, tire learned president of the common pleas said: “ If the jury believe from the evidence in this case that the child suddenly and unexpectedly appeared in the vicinity of the track under such circumstances that the driver of the car could not have discovered its presence in time to avert the accident, the verdict must be for the defendant.” This instruction was fully warranted by the evidence, and it fairly presents the main, if not the only, question of fact upon which it was necessary for the jury to pass. That question was settled in favor of the defendant by their verdict.

Much as the injury wh’ich unfortunately befell the child is to be regretted, the defendant company should not be held liable in damages unless it, through its employee, was guilty of negligence which was the proximate cause of the injury. There is nothing in the record on which a reversal of the judgment can be based.

Judgment affirmed.