The opinion of the court was delivered by: CLARY
This case involves a personal injury claim of the plaintiff for injuries suffered about 1:30 a.m. on October 13, 1949 under the following circumstances. Plaintiff, accompanied by a business acquaintance arrived at old Broad Street Station, Broad and Market Streets, Philadelphia, Pennsylvania, somewhere after 1:00 o'clock a.m. It was a wet night, slightly misty, with very light rain. The two walked together south on the west side of Broad Street to South Penn Square, where they turned to cross Broad Street which is about 80 feet wide at the regular pedestrian crossing. They testified the light was in their favor. After traversing all but a few feet of the approximately 80 foot wide street, plaintiff, while still in the pedestrian crossing, was struck by the left front fender of a taxicab operated by the defendant in a southerly direction on Broad Street. He sustained serious injuries including a fractured skull. The case was tried to a jury and consumed all or part of four days and resulted in a verdict for the plaintiff in the sum of $ 15,000. Defendant has moved for a new trial and the matter is before the Court for disposition of that motion.
The defendant's main complaint is that the Court did not charge the jury in the exact language of the Pennsylvania decisions regarding the duty of an operator of a motor vehicle at an intersection or pedestrian crossing. Specifically he complains that the Court did not charge in the language of Galliano v. East Penn Electric Co., 303 Pa. 498, 503, 154 A. 805, 807, that 'Having one's car under control means having it under such control that it can be stopped before doing injury to any person in any situation that is reasonably likely to arise under the circumstances'.
The Court charges the jury that the plaintiff had the burden of establishing the negligence of the defendant by a fair preponderance of the evidence. As to the respective duties of pedestrians and operators of motor vehicles, the Court charged in substance the standard of care set forth in the Galliano case, supra, and in Atkinson v. Coskey, 354 Pa. 297, 47 A.2d 156; Fidelity Fidelity-Philadelphia Trust Company v. Staat, 358 Pa. 344, 57 A.2d 12. In Smith v. Wilstar, 327 Pa. 289, 292, 172 A. 693, the duty of an operator of a vehicle was defined in the following words. 'At street crossings drivers must be highly vigilant and maintain such control that they can stop their cars on the shortest possible notice. It is the highest duty of motorists. The pedestrian has the right of way.'
Another complaint by defendant, was that at the conclusion of the trial, the Court charged that a witness for plaintiff was 'absolutely disinterested'. That was improper. The situation arose, however, from defendant's request to have the jury instructed that the defendant's witness was disinterest. The Court granted the request, but stated to the jury that plaintiff's witness was 'an absolutely disinterested witness as well'. The interest of both witnesses was for the jury to determine. The Court's instructions in this regard, therefore, were improper, but under the circumstances the error was harmless. There was no apparent interest in either witness and the Court so instructed the jury. It was only after repeated attempts by counsel for defendant to reargue and re-emphasize favorable aspects of his case to the jury that this situation was brought about. The characterization of the interest of the witnesses is not of sufficient importance to require or justify the granting of a new trial.
The motion for a new trial will be dismissed.
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