Tolson v. Philadelphia Rapid Transit Co.

Citations

• 248 Pa. 227
• 93 A. 1017
• 1915 Pa. LEXIS 550

Syllabus

<p>Negligence — Street railways — Signal—Evidence—Negative tes~ timony — Positive testimony — Relative weight — Instructions to the jury.</p> <p>1. The purpose of the signal of the approach of a car on a street railway is to warn persons approaching a crossing, but, where one sees a car coming he needs no other warning or notice.</p> <p>2. Where in an action to recover damages for injuries resulting to plaintiff in consequence of a collision between his wagon and a trolley car at a street crossing, two witnesses for plaintiff who were present at the accident, testified that they heard no warning .given by the approaching car, and the motorman, a witness for defendant, testified that the gong was rung twice as the car approached the crossing, the trial judge made no error in characterizing the testimony of such witnesses for plaintiff as negative testimony and in stating that it was not as strong as positive evidence. Such instruction, even though erroneous, was not harmful to plaintiff it having appeared that plaintiff saw the car one hundred and fifty feet away before he drove upon the tracks of the defendant.</p> <p>Practice, G. P. — Trials—Misquotation of testimony — Harmless error.</p> <p>3. In such case the fact that the trial judge charged the jury that plaintiff “must show a case free from contributory negligence” was not harmful where the trial judge further correctly and fully discussed the elements necessary to constitute negligence and contributory negligence, nor was it reversible error in referring to plaintiff’s testimony to say tbat plaintiff “speeded up” his horse, where plaintiff stated that he “whipped up” his horse. If plaintiff’s counsel considered that he was harmed by such an error, he should have called the attention of the trial judge thereto before the jury left the court room and his failure so to do was a waiver thereof.</p>