Rose v. Negro

66 Pa. Super. 192, 1917 Pa. Super. LEXIS 223

• Court: Superior Court of Pennsylvania
• Decided: March 16, 1917
• Docket: Appeal, No. 385
• Status: Published

Opinion

Opinion by

Porter, J.,

This is an action of trespass to recover damages for an alleged assault and battery. The action as originally brought charged a joint tort against Jermone Negro and Mike Negro-, his son, but the record was amended by striking out the name of Mike Negro as a defendant, and the trial proceeded against the present appellant alone. The plaintiff recovered a verdict and judgment in the court below and the defendant appeals.

One of the bones of plaintiff’s right leg was broken during the assault and the court below submitted to the jury the question whether that particular injury had been caused by this appellant, or by his son, Mike Negro, with the instruction that they must not award damages for the broken leg against this appellant unless they were satisfied that that particular injury had been inflicted by him. The court instructed the jury, also, that if they found for the plaintiff and further found that this appellant had broken the bone in plaintiff’s leg, they could take into consideration that injury in determining the amount of the damages to which plaintiff was entitled. There are a number of assignments of error to the charge of the court, but they raise but one question, which is thus stated by the learned counsel for the appellant in his paper book: “The sole question for decision, therefore, is whether the court erred in saying to the jury that they could assess damages against- Jermone Negro for. the broken leg.” The plaintiff testified through an interpreter and this seems to have resulted in réndering somewhat obscure the precise meaning of his testimony. It may, however, be conceded that his testimony seemed to indicate that the blow which broke his leg was inflicted by Mike Negro, the son of the appellant. The contention of the appellant is that, as the testimony of the plaintiff fixed the responsibility for the broken leg upon Mike Negro, that testimony was conclusive upon the point, and that it was the duty of the court, without regard to what other testimony might establish, to instruct the jury that they must not take into account the broken leg, in estimating the damages for which this appellant was responsible. He asserts that this was permitting the jury to assess damages against this defendant for an injury inflicted by another person. The learned counsel for the appellant in support of this contention relies upon those cases in which a plaintiff who seeks to recover damages on account of the alleged negligence of the defendant, clearly establishes by his own testimony that he was himself guilty of negligence which contributed to the injury, and cites among other cases Adams v. Lehigh Valley Transit Co., 45 Pa. Superior Ct. 623, in which it was said: “If the plaintiff’s own testimony had shown that he was negligent, he could not complain if the court held his case as he made it, although another witness had done better for him than he had for himself.” There is a clear distinction to be drawn between cases of that character and the one with which we are now dealing, in those cases the plaintiff was testifying as to what he himself had done, while in the present case the plaintiff was testifying as to what each one of several persons who were making an assault upon him had done.

When a man is being assailed by several antagonists he may still know better than others what he himself does, but he must necessarily become more or less confused as to the movements of those by whom he is assailed and he may be less able to tell which of his assailants inflicts upon him a particular injury, than an onlooker'who has a better chance to observe. In the present case several disinterested witnesses, among them one called by the defendant, testified that this appellant was beating the plaintiff with a stick, upon the head and legs, at the time the plaintiff fell to the sidewalk, from which he was unable to arise because his leg was broken. No witness on either side of the case, except the plaintiff, gave testimony which would have warranted a finding that the leg was broken by Mike Negro, the son of the defendant. There was, therefore, no error in submitting to the jury the question, under the evidence, whether this appellant had broken the plaintiff’s leg. We are of opinion that the learned judge of the court below would have been warranted, under the evidence in this case, in instructing the jury that if they believe the testimony of the plaintiff, this was a joint assault by the appellant and his son and that each of them would be responsible for all the consequences that resulted. “All who are present at a quarrel and sanction what is being done are answerable for all the injury. It is contrary to law — contrary to duty — and the law will not weigh very nicely the acts of particular individuals, to ascertain whether what was said or done by them has enhanced the injury more or less than the acts of others”: Frantz v. Lenhart, 56 Pa. 365.

The court below permitted counsel for the plaintiff to ask the appellant, upon his cross-examination, whether he had offered the plaintiff one hundred dollars, after the latter had gotten out of the hospital. This worked no injury to the appellant’s cause, for he answered that he had not done so, and no attempt was made to introduce evidence that his answer was not true. All the specifications are overruled.

The judgment is affirmed.