Indian v. Delaware, Lackawanna & Western Railroad

Citations

• 262 Pa. 117
• 104 A. 871
• 1918 Pa. LEXIS 602

Syllabus

<p>Practice, C. P. — Variance—Failure to object at trial — Waiver.</p> <p>1. Where in a negligence case a fact not covered by the pleadings is testified to by the plaintiff’s witnesses and they are cross-examined as to such fact and no formal objection to the variance is raised at the trial, and no motion for a nonsuit or a continuance is made, the defendant cannot, after verdict and judgment, successfully complain of the alleged variance.</p> <p>Negligence — Railroads—Aisle of car — Condition of carpet — Fall of passenger — Evidence—Absence of proof of plcdntiff’s age — Damages — Chwrge—Improper remarks of counsel — New trial — Refusal.</p> <p>2. The fact that there is no testimony as to the age of a plaintiff, who is present at the trial, is no ground for refusing to permit a recovery based upon the plaintiff’s expectancy of life, where the jury has had ample opportunity to form its own opinion as to the plaintiffs age and where no objection is made to such alleged lack of evidence until after verdict and judgment.</p> <p>3. In an action against a railroad company by a passenger to recover for personal injuries resulting from a fall occasioned by the defective condition of a carpet in the aisle of one of defendant’s cars, there is no merit in the contention that the charge was inadequate on the question of defendant’s negligence, where the court instructed the jury that it was the duty of the defendant, as a common carrier, to maintain its cars in a proper manner, and affirmatively answered plaintiffs points to the effect that it is the duty of a common carrier to exercise a high degree of care in seeing that the threshold of the cars and the carpets in the aisles are in a reasonably safe condition.</p> <p>4. No complaint can successfully be made on appeal as to alleged improper remarks by counsel where no request has been made for the withdrawal of a juror or for instructions to disregard the alleged improper remarks.</p> <p>Practice, Supreme Court — Harmless err