McCabe v. City of Philadelphia

Opinion by

Beaveb., J.,

These cases were tried together before the same jury in the court below and were argued together here as a single case. They depend upon the same facts, and specifications of error are assigned as of a single case. We therefore, consider them together.

The assignments of error relate solely to the charge of the court below and, although two in number, the burden of the complaint is that the cases were practically taken from the jury.

Two principal questions were involved. Was the defendant negligent? Was its negligence the proximate cause of the accident ? These facts were practically assumed by the court below and the jury charged in regard thereto as if the evidence was uncontradicted. The trial judge did not give binding instructions, but it is difficult to see how the jury could have found otherwise than they did, regard being had to the instructions given them by the court. It is not necessary for a trial judge to emphasize or even to detail every fact brought out by the testimony in the course of the trial. “ It is enough if he gives to the jury a general review of the evidence on the one side and the other which fairly and adequately presents the respective contentions of the parties with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole and to appreciate its bearing:” Com. v. Kaiser, 184 Pa. 493. But when facts are reviewed there should be such a presentation of them as will give to the jury a fair and adequate understanding of both sides of the case. The charge under review does not measure up to the standard here laid down.

As to the question of negligence it is said in the charge, “It is expressly conceded by the counsel for the city that to leave such a pile of dirt or snow and ice as any of the witnesses have described for a period of time such as has been alleged to have been the ease was negligence. There is no doubt about it. It was inexcusable negligence; ” and yet one of the witnesses for the defendant, a policeman on duty in that locality, in answer to a question asked by the counsel for the plaintiff, “ Q. You had seen that the tree boxes were perfect but you had not seen this obstruction two and a half feet high was in the street ? ” said, “A. This was not an obstruction nor was it two feet and a half high.” There is other evidence in the case, including the photograph, which, although not taken until after the accident and after the alleged obstruction had been scattered over the street — and, therefore, of less value than if taken previously — which should have been called to the attention of the jury, as tending to contradict the testimony of the plaintiff in regard to the alleged obstruction.

As to the proximate cause of the accident, the broken tree box, the condition of the driver at the time of and immediately following the accident, the sudden turn of the horses across the street and the fact that the carriage was apparently not overturned, as was assumed lby the trial judge in the charge to the jury, were all for the consideration of the jury, and, if called to their attention, might possibly have led to a different verdict which could have been sustained under all the evidence.

Without going into an analysis of all the testimonjq which we have carefully examined, it is sufficient to say that the emphasis in the charge was decidedly upon the plaintiff’s side of the ease, while that of the defendant was minimized, if not ignored. This, under all the authorities, was not such a presentation of the case to the jury as the defendant was entitled to and constitutes error.

Judgment reversed and a new venire awarded in each case.