'Now, what is meant by that is that if the pedestrian gets to the corner and starts his crossing at the same time as the car does, the pedestrian's rights are paramount; but if the driver has gotten there first and he started across the crosswalk, then the pedestrian cannot run in front of him or run into the side of him. A pedestrian's rights are not paramount to that extent.
"P-4. The degree of care required of a driver at an intersection is greater than that required between intersections.
"P-5. In driving through any locality where children are known to be in movement, motorists should drive with the care and caution of one walking through an infant's nursery."
The testimony reveals that the driver kept the children under observation until after he commenced his turn. Therefore, the trial judge did not err in reading defendants' eighth point for charge (N.T. 1143).
E. The trial judge did not err in his reference to the testimony with respect to the direction in which the group of boys was facing immediately prior to the accident (page 26 of Document No. 47).
Plaintiffs' contention that Jimmy's back was to the truck driver around the time of the accident is not supported by the evidence. Kucinski testified that when Jimmy ran off the curb he was looking at the northwest corner of the intersection (N.T. 59-60). Baldwin said he saw them playing and did not recall the directions in which they faced (N.T. 165-6).
The court's summary of the evidence with respect to the direction of the boys was accurate (N.T. 1133).
At the conclusion of the charge, the trial judge made an additional statement (N.T. 1180), clearly leaving it to the jury as to their recollection of the facts:
'First of all, I want to emphasize that I have not begun to go over all the testimony. I just pointed out a few things in order to make points clear. You must, of course, consider all the testimony in deciding any point. For example, the plaintiff says that you can infer that the boys were standing with their backs to the truck driver because they were about to cross the street. He said at one point that they were about to cross the street. Well, that is right, and you could so infer. It is up to you.'
Plaintiffs' contention 'that there was evidence from which the jury could infer -- indeed almost had to infer -- that at least some of the children had their backs to the driver,' is not supported by the record and, even if it was so supported, the above quote, if anything, was more favorable to plaintiffs than the record would justify. The charge on this point is not ground for a new trial in view of F.R.Civ.P. rule 51.
F. Other alleged errors of the trial judge with reference to the liability issues.
The many points raised in plaintiffs' reasons for new trial (Documents Nos. 36, 37 & 45) and in their two briefs have been considered by the trial judge, who believes they have no merit.
In view of the apparent holding in Trout v. Pennsylvania Railroad Company, 300 F.2d 826, 829-830 (3rd Cir. 1962) (see, particularly, pp. 4-7 of Petition for Rehearing, denied on 5/28/62), that any reason for new trial stated in a brief filed prior to entry of an order ruling on a post-trial motion may be the basis for grant of such motion, the briefs of counsel filed with the court are being placed in the Clerk's file as Documents Nos. 47, 48 and 49.
III. Alleged errors of the trial judge on the issues of damages.
In view of the negative answer of the jury to question 1, there is no need to discuss these alleged errors.
See Burch v. Reading Company, 140 F.Supp. 136, 147 & 161 (E.D.Pa.1956), aff'd 240 F.2d 574 (3rd Cir. 1957), cert. den. 353 U.S. 965, 77 S. Ct. 1049, 1 L. Ed. 2d 914 (1957).
However, these references to the record may be helpful. During the closing argument of plaintiffs' counsel, such statements as the following were made:
'* * * I am asking you now, upon whose shoulders should the terrible burden of these injuries -- upon whose shoulders should they rest? Upon the shoulders of little Jimmie Romer, who was five years old at the time this accident happened, or upon the shoulders of this Smith Transfer Company * * *.' (N.T. 994)
'Let me say this, members of the jury: Jimmy Romer is in court today. He is not going to be able to come back to you when he is 40 years old in 1990 and say, 'Members of the jury, I have had a tough 20 years since I was 20 years old * * *." (N.T. 1041).
This language justified the statements of counsel for defendants in his closing argument at N.T. 1050 and 1097.
As to the objection of counsel for plaintiffs to the language concerning the driver
in the charge, while the court was instructing the jury that the interest of a witness should be considered in evaluating his testimony (N.T. 1126-8), the following language from a conversation between counsel for plaintiffs and the court immediately prior to the charge is significant (N.T. 1118-9):
'THE COURT: * * * Under the law, isn't it true that Mr. Baldwin is personally liable if he is at fault? If his employer has insurance or no matter what it is, they have the right to sue the man who is at fault. Isn't that so?
'MR. MANN: Yes sir, no question about it, no question about it, but Mr. Williams's remarks were not so limited. His remarks referred to the future, as though he was going to be personally affected in the future by this case, and we both know, sir, that that is not so.
'THE COURT: * * * As I understand it, whoever has to pay any verdict in this case has the right to collect it from Mr. Baldwin. If you had not sued him, then this verdict would not be res judicata as to him, but you have sued him. If he is held at fault, the responsibility is his. His principal did not hire him to be negligent. His principal is responsible to the third person, but his principal can recover from an agent who violates the law. Now, isn't that the law?
'MR. MANN: That is correct, sir. This is the law * * *.'
The trial judge finds no merit to the complaints of plaintiffs on the issues of damages in the light of F.R.Civ.P. rule 51 and, in view of the many days devoted to medical testimony in this case, suggests that if a new trial should be required, it should be limited to the liability issue.
In view of the facts that the plaintiff suffering personal injuries in this accident was a minor who was five years of age and that he has had an excellent recovery, the verdict was not so inadequate as to justify the court's substituting its views for those of the jury and granting a new trial. See, for example, Georgia Automatic Gas Co. v. Fowler, 77 Ga.App. 675, 49 S.E.2d 550 (1948); Chapple v. Sellers, 373 Pa. 544, 96 A.2d 868 (1953); Patterson v. Palley Manufacturing Co., 360 Pa. 259, 61 A.2d 861 (1948); 16 A.L.R.2d at 209. The fact that some juries would have given higher verdicts for injuries which are less serious, as indicated in the cases submitted by counsel for plaintiffs on April 26, 1962, which have been attached to plaintiffs' brief (Document No. 47), does not justify the court in granting a new trial on the ground that the verdict was inadequate.
For the foregoing reasons, the post-trial motions will be denied.