Morris M. Berger, James A. Wright, Pittsburgh, for appellants.
James J. Burns, Jr., Pittsburgh, for appellee.
Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold, and Gunther, JJ.
[ 168 Pa. Super. Page 173]
The amount in controversy being less than $2500, these two appeals were remitted to this Court by the Supreme Court.
Appellants, husband and wife, sued jointly in trespass to recover damages for personal injuries alleged to have been sustained by both. The husband also claimed
[ 168 Pa. Super. Page 174]
for property damage. Defendant filed a counterclaim for property damage, alleging that the collision between the truck owned and operated by the husband-plaintiff, and in which the wife-plaintiff was riding, and a truck owned by defendant and operated by its employe was caused solely by the negligence of the husband-plaintiff. The jury returned the following verdict: 'And now, to wit: March 2, 1948, we the Jurors empanelled in the above entitled case, find the Plaintiff Mr. David Cohen guilty of negligence and the Defendants the Hempfield Foundries Company a corporation not guilty. For the defendants the amount [of] $476.70.' The jury's finding that the defendant was 'not guilty' was accepted by the court below as applying to the wife's claim, as well as to the husband's. Whether or not it did so apply cannot be considered or passed upon by this Court. Separate appeals were taken by the husband and the wife, but no question as to the failure of the jury to return a separate verdict on the claim of the wife was raised until after the appeals had been taken from the refusal of plaintiffs's motions for a new trial and for judgment n. o. v. after argument before a court en banc. Appellants then filed an additional motion for a new trial for the wife-plaintiff which the court below properly refused to consider. 'An appellate court does not sit to review questions that were neither raised, tried nor considered in the trial court. In re Huffman Estate (No. 3), 349 Pa. 59, 62, 36 A.2d 640, 151 A.L.R. 1384; Henry v. Zurflieh, 203 Pa. 440, 451, 53 A. 243'. Fisher v. Brick, 358 Pa. 260, 264, 56 A.2d 213, 215.
The only questions properly before this Court which are worthy of consideration are two alleged trial errors.
In their statement of claim plaintiffs alleged that 'On or about July 25, 1946, man Plaintiff was lawfully and carefully operating his Reo truck on U. S. Route 30 (Lincoln Highway) at or near Stewartsville, North Huntingdon Township, Westmoreland County, Pennsylvania,
[ 168 Pa. Super. Page 175]
in a Westwardly direction' and 'while they were thus lawfully and carefully proceeding in said truck, a truck owned by the Defendant * * * was so negligently * * * driven by said Defendant's employee, that it was allowed to collide with the truck in which Plaintiffs were riding.' At the trial plaintiffs' testimony was that their truck was pulling out from a private driveway onto the Lincoln Highway when struck. Defendant moved to strike the evidence on the ground of a variance between the allegata and the probata. Plaintiffs then asked and were granted leave to amend their complaint by ...