McMillen v. Strathmann

Citations

• 264 Pa. 13
• 107 A. 332
• 1919 Pa. LEXIS 578

Syllabus

<p>Negligence — Automobile—Collision with pedestrian■ — Children crossing street — Control of car — Speed.</p> <p>1. Although the driver of an automobile truck upon seeing a child run across the street is bound to use care, he is not bound to anticipate that the child will run back across the street in front of the truck.</p> <p>2. In an action for injuries to a child by being struck by an automobile truck while attempting to cross the street in the middle of the block, the trial judge properly instructed the jury that the driver was not compelled at all times to run so slowly that he could stop instantly, but that it was his duty to bear in mind that children are apt to run into the street and to keep his machine under control so as to be able to stop in a reasonable time in an emergency, and that if he saw the danger in time he should so control his car as to stop and avoid the accident.</p> <p>3. In such ,a case it is proper to instruct the jury that “unless you find that the automobile truck of the defendant was being driven at the time of the accident at an excessive and dangerous rate of speed, or that the boy was standing or playing in the roadway a sufficient length of time for the driver to have seen him and stopped, then the verdict must be for the defendant.”</p> <p>Practice, Supreme Court — Appeals—Errors by trial judge in commenting on testimony — Necessity of calling judge’s attention to the mistake.</p> <p>4. Mistakes made by the trial judge in the statement of the testimony to the jury cannot be taken advantage of on appeal where his attention was not palled thereto at the time, since a party may not sit silent and take Ms chance of a verdict, and then, if it is adverse, complain of a matter which, if an error, would have been immediately rectified and made harmless.</p> <p>Practice, Supreme Court — Assignments of error — Charge of the court.</p> <p>5. The Supreme Court will not consider a complaint that the charge of the court was inadequate, where