Rose v. Negro

Citations

• 66 Pa. Super. 192
• 1917 Pa. Super. LEXIS 223

Syllabus

<p>Assault and battery — Givil action for — Evidence—Damages.</p> <p>In an action against a father and son to recover damages for an assault and battery in which the plaintiff’s leg was broken, where the son’s name is withdrawn as a defendant before trial, and the plaintiff gives evidence which indicates that his leg was broken by the son, although disinterested witnesses on both sides gave testimony which' indicated that it was broken by the father, and no one testified that it was broken by the son, the trial judge cannot be convicted of error in instructing the jury that if they found the leg was broken by the father, they could assess damages against the latter for the injury. In such a case the testimony of the plaintiff is not conclusive against himself.</p> <p>It seems that the trial judge would have been warranted under the evidence in the case, in instructing the jury that if they believed the testimony of the plaintiff, this was a joint assault by father and son, and each of them would be responsible for all the consequences that resulted.</p>