Appeals, Nos. 110, 111, and 112, March T., 1954, from judgments of Court of Common Pleas of Allegheny County, July T., 1949, Nos. 1037 and 1038, in cases of Raymond N. Haas v. Andrew Kasnot; and Anthony Cihal, Jr. and Anthony J. Cihal v. Same. Judgments affirmed.
C. J. Tannehill, with him Harry V. Bair, for appellants.
James J. Burns, Jr., with him Tom P. Monteverde, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This is the second time that these cases have been appealed to this court by the plaintiffs. On the first appeal, reported in 371 Pa. 580, 92 A.2d 171, we held that legally inadmissible testimony had been introduced at the trial; therefore we reversed the judgments that had been entered on the jury's verdicts for defendant and granted plaintiffs a new trial. The jury has now again found a verdict in defendant's favor.
Plaintiffs' present complaints, which relate principally to alleged errors of commission and omission in the trial judge's charge to the jury, could all be properly disposed of by calling attention to the fact that at the conclusion of the charge the court asked counsel whether either of them had any "suggestions or additions, corrections or amplifications," to which counsel for plaintiffs responded merely by requesting the court to make some additional statement in regard to a matter not now in question and taking a general exception to the charge. Such an exception, of course, reaches only to basic and fundamental error (Wadatz, Admrx. v. Taormina, 356 Pa. 481, 486, 52 A.2d 220, 222, 223) and the alleged errors of which plaintiffs now complain do not come within that category. However, we shall briefly discuss their contentions in regard to them.
The factual issue at the second trial was the same as at the first. Anthony Cihal, Jr., with Raymond N. Haas and Edward Reiter as passengers, was driving his father's car in a westerly direction on the right-hand side of West Carson Street in Pittsburgh between the northerly street-car track and the curbstone. Andrew Kasnot was operating his car in the opposite or easterly direction straddling the southerly rail of the southerly street-car track. Veering suddenly over to the northerly side of the street he came
head-on into the Cihal car. Cihal, Jr. and Haas, who were both injured, and Cihal, Sr., the owner of the car, brought suit for damages against Kasnot. The defendant claimed that one Louis Mike, who had been driving a car on the northerly side of the street ahead of the Cihal car, pulled out to his left in order to pass a truck ahead of him, and, in so doing, either swung too far over, or skidded, into the southerly side of the street, struck defendant's car in the left rear and thereby caused it to swerve across the street and into collision with the Cihal car. Defendant therefore contended that the accident was not due to any fault on his part. Plaintiffs, on the other hand, testified that they saw no such third car at the time of the collision. The controlling issue in the case, therefore, was whether three or only two cars were involved in the accident.
At the first trial, neither side called Mike as a witness. The court, commenting on this, told the jury that Mike was equally available to both parties. We held that this statement was unfair to plaintiffs in view of their claim that they had no knowledge of any such person; therefore any unfavorable inference from the failure to call Mike could be drawn only against defendant and not against plaintiffs. At the present trial the situation was different, for not only was Mike in the courtroom during the entire trial, and not only was his presence there known to plaintiffs, but they admitted that they had actually talked to him and also had heard him testify at a previous hearing before the State Highway Department. As before, neither side called Mike to the stand. In their closing addresses to the jury ...