Opinion
March 11, 1937.
April 15, 1937.
Negligence — Automobiles — Evidence — Child off roadway struck by vehicle.
1. In an action for injuries, in which there was testimony on behalf of plaintiffs to establish that the minor plaintiff, a nine year old boy, while standing on the side of a road, five feet away from the paved roadway, was struck by defendant's car, on a bright, clear day, with the road dry and free of other traffic, and in which defendant offered no testimony, the evidence was sufficient to sustain a verdict and judgment for plaintiffs.
Practice — Trial — Withdrawal of juror — Remarks of counsel — Defendant drunk or crazy — Instructions by trial judge — Disavowal by counsel.
2. The refusal of a motion to withdraw a juror, after plaintiff's counsel in his closing address to the jury stated that defendant must have been crazy or drunk, to have run off the road and to have hit the boy, was not reversible error, where the trial judge instructed the jury to disregard the remark, and counsel for plaintiffs disavowed any intention to assert that defendant was either drunk or crazy, especially where the very modest verdict for plaintiffs considering the serious injuries suffered by the boy, indicated that the jury was not influenced to defendant's prejudice.
Appeals, Nos. 401 and 404, Oct. T., 1936, from judgments of C.P. Lycoming Co., June T., 1935, No. 338, in case of Ralph Spring, a minor by his father and next friend, Harry E. Spring, and Harry E. Spring, in his own right, v. William H. Herriman.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Judgments affirmed.
Trespass. Before LARRABEE, J.
The facts are stated in the opinion of the Superior Court.
Verdict in favor of minor plaintiff in the sum of $500. and in favor of the parent plaintiff in the sum of $1,000. and judgments entered thereon. Defendant appealed.
Error assigned, among others, was refusal to withdraw a juror.
Herbert R. Carroll, for appellant.
John G. Reading, of Reading Wood, for appellees.
Argued March 11, 1937.
The plaintiffs' testimony furnished sufficient evidence of defendant's negligence to sustain the verdict and judgment in this case. Defendant did not choose to take the witness stand, or offer any testimony, so the only question before the jury was whether or not they believed the testimony produced on behalf of the plaintiffs.
A nine year old boy standing still on the side of the road, five feet away from the paved roadway, could not have been hit by the defendant's car unless it was off the roadway; and to go five feet off the roadway on a bright, clear day, with a dry road, free of other traffic, and hit a boy standing still there, would justify a finding of negligence on the part of the driver of the car, unless it was shown that something suddenly went wrong with his steering apparatus, or some other satisfactory excuse for his action was presented, of which this defendant gave no evidence.
The statement of plaintiffs' counsel in his closing address to the jury: "I cannot understand — he must have been crazy or drunk, to have run off the road and hit the boy," was followed at once by a motion for the withdrawal of a juror and the continuance of the case. The trial judge refused the motion but at once instructed the jury to disregard the remark, whereupon counsel for plaintiffs disavowed any intention to assert that the defendant was either drunk or crazy and said to the jury: "I beg your pardon, ladies and gentlemen, I did not intend to do anything that was out of the way, although I cannot understand how in the name of all that is marvelous a man who claims to be able to drive an automobile could get off the pavement on a bright day, a bright afternoon, and hit a boy five feet off the pavement; can you?"
Later, in the charge, the court again instructed the jury to disregard the remark.
The verdict in favor of the minor plaintiff, $500, was very modest in amount considering the very serious injuries suffered by the boy.
The court below was satisfied that the jury had not been inflamed by the remark complained of, followed, as it was, by the immediate disavowal of the counsel who made it and the directions of the court to disregard it, saying, in the opinion refusing the motion for a new trial and for judgment non obstante veredicto: "We are of the opinion that the prompt action of plaintiffs' counsel in promptly withdrawing the remark objected to, which was immediately followed by an instruction from the Court to the jury to disregard the remark, and that this instruction was repeated to the jury at the very close of the Court's charge, so that the instruction would be fresh in the jurors' minds, eliminated and reduced any prejudicial effect which the remark complained of might have had on the jury; and this, taken in connection with the very modest verdict awarded the boy for the serious and painful injuries sustained, indicate quite conclusively that the jurors' minds were not influenced to the prejudice of the defendant." See Public National Bank v. Enameled Metals Co., 324 Pa. 186, 188 A. 143.
We agree with this conclusion.
Judgments affirmed.