Appeal, No. 97, March T., 1951, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1948, No. 182, in case of Joseph V. Takac v. August Bamford and Charles T. Bamford, trading as Bamford Brothers. Judgment affirmed.
George S. Goldstein, for appellant.
Ernest C. Reif, with him Dickie, McCamey, Chilcote, Reif & Robinson, for appellees.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff sued to recover damages for personal injuries suffered while a passenger for hire on a bus of the defendant firm. The negligence charged was the driver's failure to operate the bus properly and the alleged faulty and defective bus equipment. At trial,
the jury rendered a verdict for the plaintiff in the sum of $3,000. The plaintiff moved for a new trial alleging that the jury's verdict was inadequate and that the inadequacy was the result of basic and fundamental error in the charge of the trial judge. The court en banc denied the plaintiff's motion and entered judgment on the verdict. The plaintiff brought this appeal and assigns for error the lower court's refusal of his motion for a new trial.
The matter whereof the appellant complains was neither basic nor fundamental error. Indeed, it was not error at all. The learned trial judge properly charged the jury that the burden was on the plaintiff to prove that negligence of the defendants was the proximate cause of the injury for which he sought damages. The court then instructed the jury that, if they found the accident was due to defective brakes on the bus, as the evidence for the plaintiff indicated, it was then incumbent on the defendants (a common carrier) to produce evidence of exculpatory care on their part in respect of the bus's equipment.That instruction was manifestly correct: see Nebel v. Burrelli, 352 Pa. 70, 74-75, 41 A.2d 873; and Archer v. Pittsburgh Railways Company, 349 Pa. 547, 548-549, 37 A.2d 539.
What the plaintiff really complains of is that the trial judge left it to the jury to say whether an inspection of the brakes (merely "cursory" as the court denominated it) by the driver just before descending the hill where the bus went out of control from a failure of its brakes met the burden on the defendants in relevant regard. We fail to see how the court could have excluded such evidence from the jury's consideration without risking possible error against the defendants to the jeopardy of any verdict the plaintiff might recover. It may well have been for that reason that plaintiff's counsel did not question the particular submission at the time of the charge. In any event, it was
not until after the jury had retired to deliberate on its verdict that plaintiff's counsel casually observed, -- "I was wondering, your Honor, if that was a fair statement of the law, that the mere fact that the driver had made his effort to test the brakes could be considered by the jury as evidence of exculpation...." Obviously, the subject matter of counsel's present complaint with the charge was in his mind at the time. Yet, he failed to make any request for further or other instruction. On the contrary, when the trial judge inquired expressly whether plaintiff's counsel had "anything further", he replied -- "No, your Honor, you have covered everything."
It is clear that the driver's testimony about testing his brakes could not properly have been ignored by the court when applying the law to the testimony. The only possible question open to the plaintiff in that connection is whether the trial judge adequately indicated the weakness of that testimony. It was the plaintiff's duty, if he felt harmed in such regard, to request the court's elaboration or further instruction with respect to the extent of the probative value of the exculpatory testimony. Counsel, not having so requested, cannot now charge the court with failure to instruct the jury adequately. As said by Mr. Justice STERN in Susser v. Wiley, 350 Pa. 427, 430, 39 A.2d 616, -- "... a party may not remain silent and take his chances on a verdict, and then, if it be adverse [or disappointing], complain of an inadequacy which could have been corrected."
But the charge was not inadequate in the particular assailed by the appellant. With marked fairness to the plaintiff, the trial judge effectively minimized the driver's testimony as to his testing of the brakes. Thus, the court said to the jury, -- "As I stated originally, if they can establish that this ...