Opinion by
Me. Justice Elkin,
This is an action brought by the husband individually [121] and as administrator to recover damages for personal injuries sustained by Ms wife. The case was submitted to the jury and a verdict was returned in favor of the defendant. The eighteen assignments of error relate mainly to the charge of the trial judge and the answers to the points. Most of the assignments are technical and lacking in substantial merit when viewed in the light of the whole record. The assignment relating to the instruction as to the measure of damages certainly would not warrant a reversal when the jury found as a fact that appellants were not entitled to recover any damages whatever. Complaint is made by appellants that the case was not fairly submitted to the jury from their point of view and that the charge was inadequate. It is urged that the contentions of the defendant were unduly emphasized while those of the plaintiffs were minimized, or disregarded. In order to properly determine the various questions thus raised for our consideration, it has been necessary to carefully examine the entire record, including the charge of the court, the answers to points, the theories upon which the case was tried by the contending parties, and the reasons given for refusing a new trial. After having done so we have reached the conclusion that all of the disputed questions of fact were fairly submitted to the jury and that there was no substantial and reversible error in the instructions as to the law applicable to the case. The negligence charged was that the defendant had negligently and wrongfully allowed the excavation in the pavement or footway to remain open, unguarded, and without barrier or signal light as a protection to travelers upon the street or pavement. The contention of the appellants was that it was the duty of the appellee to give notice of the dangerous situation caused by the excavation in question by signal lights or otherwise, and to erect proper guards, and that failure to perform these duties was the proximate cause of the accident. The appellants tried their case upon this theory and this view was fairly submitted [122] to the jury. Appellee, on the other hand, contended that the excavation of what is known in the case as the private alley where the accident occurred, was no part of the work which it undertook to perform for the Borough of Waynesburg, and that its employee who did the work under an arrangement with the abutting property owners to pay for the same acted without authority. It was further contended that after the excavation of the alley had been made and the work completed, W. W. Call, a son of Elizabeth Call, the injured person, accepted the work and assumed the burden of properly guarding the excavation. Indeed W. W. Call, who occupied the abutting property, took the initiative in getting the owners to agree to have the excavation made while the borough was grading and improving the public streets. It was to his advantage and for his benefit that the work was done in the alley. It was a fair question under the evidence whose duty it was to put signal lights at the place of the accident and to guard, if necessary, the excavation thus made. All of the questions incidental to this inquiry were submitted to the jury. If the employee oí the Hallam Construction Company acted without authority and did what he had no right to do, no liability would attach to his principal. On the other hand, if he acted within the general scope of his authority, or even if he acted without authority in the first instance, but subsequently his principal ratified his acts, liability for negligence and wrongful acts in the prosecution of the work would attach. Again, even if there was no question as to the employee acting within the scope of his authority, and if it be conceded that the principal is liable for negligent acts committed in making the excavation, it was still for the jury to say whether the work after completion was turned over to the abutting property owner, and if so whether the duty of guarding had been assumed by him. All these questions were in the case and they were submitted to the jury. Most of the assignments of error relate to the charge of the court, and the rulings of [123] the trial judge during the course of the trial upon questions necessarily involved in the respective contentions of the parties. The contract between the construction company and the borough, and the ordinance upon which it was based, were properly admitted in evidence as items tending to show what the situation of the parties was in respect to the work done. These matters were in no sense controlling, but they were pertinent to the case. The same is true as to the testimony relating to the alley, whether the borough had any duty to perform in connection with its maintenance and repair, and whether this was intended to be included in its contract with the construction company. These were questions of fact necessarily involved in the determination of the rights and duties of the parties.
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Opinion by
Me. Justice Elkin,
This is an action brought by the husband individually [121] and as administrator to recover damages for personal injuries sustained by Ms wife. The case was submitted to the jury and a verdict was returned in favor of the defendant. The eighteen assignments of error relate mainly to the charge of the trial judge and the answers to the points. Most of the assignments are technical and lacking in substantial merit when viewed in the light of the whole record. The assignment relating to the instruction as to the measure of damages certainly would not warrant a reversal when the jury found as a fact that appellants were not entitled to recover any damages whatever. Complaint is made by appellants that the case was not fairly submitted to the jury from their point of view and that the charge was inadequate. It is urged that the contentions of the defendant were unduly emphasized while those of the plaintiffs were minimized, or disregarded. In order to properly determine the various questions thus raised for our consideration, it has been necessary to carefully examine the entire record, including the charge of the court, the answers to points, the theories upon which the case was tried by the contending parties, and the reasons given for refusing a new trial. After having done so we have reached the conclusion that all of the disputed questions of fact were fairly submitted to the jury and that there was no substantial and reversible error in the instructions as to the law applicable to the case. The negligence charged was that the defendant had negligently and wrongfully allowed the excavation in the pavement or footway to remain open, unguarded, and without barrier or signal light as a protection to travelers upon the street or pavement. The contention of the appellants was that it was the duty of the appellee to give notice of the dangerous situation caused by the excavation in question by signal lights or otherwise, and to erect proper guards, and that failure to perform these duties was the proximate cause of the accident. The appellants tried their case upon this theory and this view was fairly submitted [122] to the jury. Appellee, on the other hand, contended that the excavation of what is known in the case as the private alley where the accident occurred, was no part of the work which it undertook to perform for the Borough of Waynesburg, and that its employee who did the work under an arrangement with the abutting property owners to pay for the same acted without authority. It was further contended that after the excavation of the alley had been made and the work completed, W. W. Call, a son of Elizabeth Call, the injured person, accepted the work and assumed the burden of properly guarding the excavation. Indeed W. W. Call, who occupied the abutting property, took the initiative in getting the owners to agree to have the excavation made while the borough was grading and improving the public streets. It was to his advantage and for his benefit that the work was done in the alley. It was a fair question under the evidence whose duty it was to put signal lights at the place of the accident and to guard, if necessary, the excavation thus made. All of the questions incidental to this inquiry were submitted to the jury. If the employee oí the Hallam Construction Company acted without authority and did what he had no right to do, no liability would attach to his principal. On the other hand, if he acted within the general scope of his authority, or even if he acted without authority in the first instance, but subsequently his principal ratified his acts, liability for negligence and wrongful acts in the prosecution of the work would attach. Again, even if there was no question as to the employee acting within the scope of his authority, and if it be conceded that the principal is liable for negligent acts committed in making the excavation, it was still for the jury to say whether the work after completion was turned over to the abutting property owner, and if so whether the duty of guarding had been assumed by him. All these questions were in the case and they were submitted to the jury. Most of the assignments of error relate to the charge of the court, and the rulings of [123] the trial judge during the course of the trial upon questions necessarily involved in the respective contentions of the parties. The contract between the construction company and the borough, and the ordinance upon which it was based, were properly admitted in evidence as items tending to show what the situation of the parties was in respect to the work done. These matters were in no sense controlling, but they were pertinent to the case. The same is true as to the testimony relating to the alley, whether the borough had any duty to perform in connection with its maintenance and repair, and whether this was intended to be included in its contract with the construction company. These were questions of fact necessarily involved in the determination of the rights and duties of the parties.
By the eleventh assignment complaint is made that the trial judge placed too heavy a burden upon the plaintiffs in making out their case in chief. The jury was instructed that the plaintiff's in order to recover must prove by the preponderance of the evidence that the defendant, through its officers, agents or employees, was guilty of the negligence from which the injuries resulted; and that “in addition it must also appear that Elizabeth Call was herself free from contributory negligence.” It is argued that this instruction required the plaintiffs to affirmatively show that Elizabeth Call was not guilty of contributory negligence, which of course is not the law. The plaintiffs must affirmatively establish the negligence of the defendant and must disclose a case free from contributory negligence. In the very next sentence, following the instruction complained of, the learned trial judge said: “That is, gentlemen, if it should appear from the evidence that Elizabeth Call was guilty of contributory negligence, there could be no recovery in this action by the plaintiffs.” When the charge on this point is considered as a whole the jury must have understood that the law only required the plaintiffs to prove the negligence of the defendant and to disclose a case free [124] from contributory negligence on the part of the plaintiffs. A judgment will not be reversed for an inaccurate instruction in one part of the charge, where it appears that the court subsequently gave ample and proper instructions, so that the jury could not have been misled: Fitzpatrick v. Traction Company, 206 Pa. 335. The present case comes within the spirit of this rule. The general effect of the charge, rather than a particular sentence, or expression contained in it, is the test by which to determine whether it was a misleading instruction. The eighteenth assignment relates to the refusal by the court to grant a new trial on the ground of the alleged intoxication of one of the jurors. The trial courts are clothed with very great discretion in the granting or refusing of new trials. As a rule this discretion will not be disturbed by appellate courts on appeal. The learned court below in disposing of the question raised by this assignment said: “Depositions have been taken' for the purpose of supporting this reason. We have examined these depositions, and they do not sustain either the allegation that the juror was asleep during the delivery of a part of the charge, or that he was at any time during the progress of the trial incapacitated by reason of liquor or otherwise for an intelligent consideration and disposition of the case.” In view of this finding based upon depositions taken after the trial had been concluded, we cannot say that the learned court below abused its discretion, or that error was committed in disposing of this reason for a new trial. Within anything like the proper limits of an opinion it is impossible to discuss in detail all of the questions raised by the eighteen assignments of error. We have examined and considered them all without being convinced that any reversible error was committed in submitting the case to the jury. It was a case for the jury on all the disputed questions of fact and the right to recover depended upon the findings of fact in dispute. This was clearly within the province of the jury. The learned [125] trial judge instructed the jury at length upon all these questions and fairly submitted the contentions and theories upon which the parties relied to sustain or defeat a recovery. The case was carefully submitted and we see no sufficient reason for reversing the judgment.
All of the assignments of error overruled and the judgment affirmed.