Opinion
September 26, 1938.
December 5, 1938.
Negligence — Contributory — Evidence — Question for court or jury.
Where the testimony from which the facts and inferences are to be drawn is conflicting and not free from doubt, plaintiff's contributory negligence cannot be determined by the court as a matter of law.
Argued September 26, 1938.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.
Appeal, No. 188, March T., 1938, from judgment of C. P. Venango Co., Aug. T., 1937, No. 37, in case of Charles Thomas Latchaw v. J. Henry Hoefner. Judgment affirmed.
Trespass for personal injuries. Before McCRACKEN, P. J.
Verdict and judgment for plaintiff in sum of $5,000. Defendant appealed.
Error assigned, among others, was refusal of judgment n. o. v.
W. F. Moyar, with him J. G. McGill, for appellant.
G. G. Martin and Skelly Mogilowitz, for appellee, were not heard.
The conflicting testimony in this case from which the facts and inferences were to be drawn was not free from doubt, and appellee's contributory negligence cannot be passed on by the court as a matter of law. See Kuntz v. N.Y. C. St. L. Ry. Co., 206 Pa. 162; Altomari v. Kruger, 325 Pa. 235. The charge of the court, considered as a whole, is free from reversible error; appellant's points corrected any mistake there might have been in it and cleared any doubt in the jury's mind as to appellee's contributory negligence. Moreover, if appellant was dissatisfied, ample opportunity was given him to have had the court explain to the jury the law regarding evidence as to contributory negligence. See Kennedy et al. v. Rothrock Co., 261 Pa. 580, 587. The other points raised by appellant are immaterial and, if error at all, they are harmless.
Judgment affirmed.