Diehl v. Reiss

Citations

• 76 Pa. Super. 189
• 1921 Pa. Super. LEXIS 113

Syllabus

<p>Appeal — Practice, Superior Court — Question not raised below— New theory.</p> <p>If a party does not avail himself of a legal position that was fairly before him, had he decided to use it in the court below, he cannot, on appeal, raise it to' the prejudice of the opposing party. Having admitted a fact at the trial, defendant cannot on appeal have the testimony on that point excluded, because the plaintiff had a right to rely upon the admission, and might well have established the fact by other evidence had there been a dispute.</p> <p>Automobiles — Negligent driving — Former accidents — Evidence.</p> <p>In an action arising out of the death of one who was killed by an automobile, where the negligence alleged was careless driving and the defendant testified that his driver was a “good and safe driver” it was competent, and a fair test, to ask the defendant whether or not the driver had “run into anybody before” and whether he had killed him.</p>