situation existed or was even alleged in this case.
Plaintiff states in his brief that a Common Pleas Court in Philadelphia County has on two occasions granted motions to exclude witnesses. It may very well be that peculiar circumstances in those cases justified the rulings. In any event, there is nothing to indicate that Court did not regard the matter as one of discretion, rather than of absolute right.
As to plaintiff's second complaint, on the refusal to charge as requested:
It was not in error to refuse to instruct the jury, as requested by plaintiff, that the plaintiff's uncorroborated testimony equalled in credibility and preponderance of evidence, that of the defendant's five disinterested eye-witnesses. In Patterson v. Pittsburgh Railway Co., 322 Pa. 125, 185 A. 283, the plaintiff sued for injuries sustained while boarding the defendant's street car, claiming that the motorman prematurely closed the doors. The plaintiff's testimony was uncorroborated. Five disinterested witnesses testified on behalf of defendant that the plaintiff suddenly left the sidewalk after the car had started and ran into the side of the car. The charge of the Court below made no reference to the unequal number of witnesses. In reversing a judgment for the plaintiff and awarding a venire facias de novo, the Supreme Court said, pages 127, 128, 185 A. page 284:
"In failing to call the jury's attention to the probabilities of the case arising from defendant's overwhelming superiority in number and disinterestedness of witnesses, the charge was clearly inadequate, and invited the apparently capricious verdict which the jury rendered. There are numerous authorities which hold that in a case such as this it is reversible error for a trial judge in his charge to minimize the advantage which one of the parties has by reason of a marked numerical preponderance of the witnesses in his favor, or to fail to caution the jury that, in weighing the conflicting testimony, they should have regard to the factors of relative numbers and disinterestedness of testimony. Clark v. Union Traction Co., 210 Pa. 636, 60 A. 302; Hodder v. Phila. Rapid Transit Co., 217 Pa. 110, 66 A. 239; Davies v. Phila. Rapid Transit Co., 228 Pa. 176, 77 A. 450, 139 Am.St.Rep. 1001; Cohen v. Phila. Rapid Transit Co., 228 Pa. 243, 77 A. 500; Weiss v. Pittsburgh Railways Co., 242 Pa. 506, 89 A. 586. It is true defendant took only a general exception to the charge, but where, as here, the case calls loudly for such instructions, the failure to give them must be regarded as basic and fundamental error."
It should be obvious, therefore, that error would have been committed had we charged in accordance with the plaintiff's request. What was actually said to the jury on that point was this: "In considering the all important issue as to how the accident happened, I say to you, members of the jury, that you should take into consideration the fact that on the one side was the uncorroborated testimony of the plaintiff, who, of course, as I said, has an interest in the outcome of this case, as every plaintiff has; and on the other side was the testimony of five disinterested witnesses, according to their testimony. Jurors must have a regard for the factors of relative numbers and the distinterestedness of testimony."
At the very outset of the charge the following instruction was given to the jury: "It is your duty to remember this evidence or testimony in its entirety so that when you come to consider the case finally you will have the whole of it in your minds. It is for you to take the evidence and weight it carefully, looking at all the possibilities that arise from it, judging for yourselves the credibility of each witness and each set of witnesses, and in that way you ascertain where the real truth lies in the case."
We are convinced that the charge was in complete accordance not only with the Pennsylvania authorities, but with the general law, and therefore overrule the plaintiff's second assignment of error.
Plaintiff in his motion for new trial mentioned a third assignment of error, having to do with objections to statements made by the witness Breitinger to the plaintiff. The point is not mentioned in the plaintiff's brief, however, and it has evidently been abandoned. Nevertheless, it may be said that, considered either as part of res gestae or as statements made to the plaintiff and in his hearing, the statements were properly admitted in evidence.
And now, December 27, 1938, for the reasons above given, plaintiff's motion for new trial is discharged.
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