McGinley v. Philadelphia & Reading Railway Co.

101 A. 825, 257 Pa. 519, 1917 Pa. LEXIS 771

• Court: Supreme Court of Pennsylvania
• Decided: April 16, 1917
• Docket: Appeals, Nos. 387 and 388
• Status: Published

Opinion

Per Curiam,

This case was for the jury, and the learned trial judge would have erred if he had affirmed defendant’s point asking that a verdict be directed in its favor. Complaint is made of certain portions of the charge as inaccurately referring to the testimony. If any fact was inaccurately or erroneously stated in the instructions to the jury, it was the duty of counsel for defendant to call the trial judge’s attention to his inadvertence, that the same might be corrected before the jury retired: Nowlis v. Hurwitz, 232 Pa. 154. We discover no error in the trial judge’s comment on the testimony, as he left it to the jury to freely determine what the real facts were, and to return their verdict in accordance therewith. While there was no evidence of what the plaintiff had earned before he was injured, there was testimony that after the accident, and before his disability became permanent, he was earning eight dollars per week. That was sufficient for the instructions which are the subject of the fourth and fifth assignments of error. The jury could well have found that the plaintiff’s earning capacity before he was crippled was at least equal to what it was afterwards.

The assignments of error are overruled and the judgment is affirmed.