Comey v. Philadelphia Traction Co.

Per Curiam,

The instructions recited in the first specification were not only warranted by the testimony, but they were quite as favorable to the defendant company as they should have been. The excerpt, on which the remaining specification is based, is obviously the learned trial judge’s conclusion from what he properly said in the two preceding paragraphs of Ms charge, viz :

• “ The plaintiff’s injury was a serious one. I think the evidence is that it is a permanent injury; but you are the judges of the weight of the evidence as well as of the credibility of the witnesses. It seems to me the weight of the testimony is that his injury is a permanent one. But wMle it may be a permanent injury, it is clear that it does not amount to a total disability of the plaintiff. It is not a total disability from which he suffers, but a partial one. No one would undertake to say that because he has a lame ankle he could not work for a living. There may be some things which he could not do, and the fact of his lameness may be a very serious drawback to him in whatever he would do.”

Every word of this was warranted by the testimony; and hence the conclusion complained of is correct and proper. Out of abundance of caution, however, the learned judge proceeded to say: “ You are not to find damages which would represent a total destruction of the plaintiff’s ability, but for a partial injury to his ability, and you are to judge of that as reasonable men, doing nothing in anger or from prejudice, but awarding what you think simply a fair, just and full compensation for the actual inconvenience, pain, injury, loss and suffering which the plaintiff has undergone.”

It thus appears that when the alleged erroneous construction is considered, in connection with the context, and in the light of the testimony, it is not only devoid of error but entirely fair to both parties. The practice of assigning error to a single sentence, severed from the context, as was done in this case, is not to be commended.

There is nothing in either assignment of error that requires further notice.

Judgment affirmed.