Opinion by
Mr. Justice Jones,
The plaintiff sued to recover damages for personal injuries suffered while a passenger for hire on a bus of the defendant firm. The negligence charged was .the-driver’s failure to. operate the bus properly and the -alleged .faulty-and defective bus .equipment. At trial, [391]*391the jury rendered a verdict for the plaintiff in the snm of $3,000. The plaintiff moved for a new trial alleging that the jury’s verdict was inadequate and that the inadequacy was the result of basic and fundamental error in the charge of the trial judge. The court en banc denied the plaintiff’s motion and entered judgment on the verdict. The plaintiff brought this appeal and assigns for error the lower court’s refusal of his motion for a new trial.
The matter whereof the appellant complains was neither basic nor fundamental error. Indeed, it was not error at all. The learned trial judge properly charged the jury that the burden was on the plaintiff to prove that negligence of the defendants was the proximate cause of the injury for which he sought damages. The court then instructed the jury that, if they found the accident was due to defective brakes on the bus, as the evidence for the plaintiff indicated, it was then incumbent on the defendants (a common carrier) to produce evidence of exculpatory care on their part in respect of the bus’s equipment. That instruction was manifestly correct: see Nebel v. Burrelli, 352 Pa. 70, 74-75, 41 A. 2d 873; and Archer v. Pittsburgh Railways Company, 349 Pa. 547, 548-549, 37 A. 2d 539.
What the plaintiff really complains of is that the trial judge left it to the jury to say whether an inspection of the brakes (merely “cursory” as the court denominated it) by the driver just before descending the hill where the bus went out of control from a failure of its brakes met the burden on the defendants in relevant regard. We fail to see how the court Could have excluded such evidence from the jury’s consideration without risking possible error against the defendants' to the jeopardy of any verdict the plaintiff might recover.- It may well have been for that reason that plaintiff’s, counsel did not- question the particular submission at the time of the. charge. In any. event, it-was [392]*392not until after the jury had retired to deliberate on its verdict that plaintiff’s counsel casually observed, —“I was wondering, your Honor, if that was a fair statement of the law, that the mere fact that the driver had made his effort to test the brakes could be considered by the jury as evidence of exculpation . . . .” Obviously, the subject matter of counsel’s present complaint with the charge was in his mind at the time. Yet, he failed to make any request for further or other instruction. On the contrary, when the trial judge inquired expressly whether plaintiff’s counsel had “anything further”, he replied — “No, your Honor, you have covered everything.”
It is clear that the driver’s testimony about testing his brakes could not properly have been ignored by the court when applying the law to the testimony. The only possible question open to the plaintiff in that connection is whether the trial judge adequately indicated the weakness of that testimony. It was the plaintiff’s duty, if he felt harmed in such regard, to request the court’s elaboration or further instruction with respect to the extent of the probative value of the exculpatory testimony. Counsel, not having so requested, cannot now charge the court with failure to instruct the jury adequately. As said by Mr. Justice Steen in Susser v. Wiley, 350 Pa. 427, 430, 39 A. 2d 616, — “. . . a party may not remain silent and take his chances on a verdict, and then, if it be adverse [or disappointing], complain of an inadequacy which could have been corrected.”
But the charge was not inadequate in the particular assailed by the appellant.' With marked fairness to •the plaintiff,- the trial judge effectively minimized the driver’s testimony as to his testing of the brakes. Thus, the- court said to the jury, — “As I stated originally, if they can establish that this was an accident which occurred-without any fault or negligence on their part, [393]*393then there can he no recovery. However, the defendant did not establish or offer any evidence to exculpate themselves or to show that they were not negligent, and the only evidence that I observed in the case that .might indicate anything in that connection was the testimony of the driver himself [in the plaintiff’s case], who made a cursory examination just before taking the bus out of the terminal. ... It would seem to me that a common carrier upon whom is the burden of exercising the highest degree of care, not only in operating its buses, but in providing a bus that was in good order, should offer additional testimony demonstrating the fact that they were not negligent. That is the situation here insofar as the liability feature of this case is concerned.” The plaintiff could not justly have asked more.
Nor was the plaintiff harmed by the court’s submission of the driver’s exculpatory testimony. As indicated by the last sentence of the foregoing quotation, such testimony went only to the question of the defendants’ liability and the jury held them liable in a not unsubstantial sum. Even had the submission been error, it was harmless in view of the result. Cf. Garris v. Bell, 253 Pa. 33, 34, 97 A. 1034, aff’d. per curiam.
How we could justifiably conclude from the record in this case that the verdict was inadequate is not apparent. Of course, by comparing the amount of the verdict with the extent of damages which the plaintiff asserted, the verdict would appear not to have been compensatory. The fact is, however, that there were serious conflicts in the evidence adduced by the plaintiff with respect to the character of the work he had performed prior to the accident, the effect of the injury on his ability to return to work and the probable duration of his incapacity. It is true that the plaintiff remained away from work for twenty-one months following his injury. However, there is noth-
[394]*394ing but Ms unsupported word to suggest that Ms injury required Mm to remain away from work so long. His doctor and medical witness at trial testified that the injury, as revealed by the X-ray, had healed satisfactorily in ninety days. By his own admission, the plaintiff was driving around seven months after the accident in the automobile which he had just purchased and attended moving picture shows and went walking with the young lady with whom he was keeping company. He very patently tried to create the impression by his testimony that his work at a local steel mill had required him to do heavy lifting for which the injury had incapacitated him, while the fact is that his work for six-sevenths of the time of his employment, as testified to by his witness from the pay department of the steel company, had been clerical, — the same kind of work he was given to do when he finally did return to work. He even resumed the stand to contradict this disinterested witness (his own) who had testified from documentary records. It was the province of the jury to appraise the worth' of the testimony and, in so doing, the jury very evidently did not accredit some of the elements of the plaintiff’s asserted damages. What was said in Zamojc v. Fisher, 127 Pa. Superior Ct. 171, 172, 193 A.
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Opinion by
Mr. Justice Jones,
The plaintiff sued to recover damages for personal injuries suffered while a passenger for hire on a bus of the defendant firm. The negligence charged was .the-driver’s failure to. operate the bus properly and the -alleged .faulty-and defective bus .equipment. At trial, [391]*391the jury rendered a verdict for the plaintiff in the snm of $3,000. The plaintiff moved for a new trial alleging that the jury’s verdict was inadequate and that the inadequacy was the result of basic and fundamental error in the charge of the trial judge. The court en banc denied the plaintiff’s motion and entered judgment on the verdict. The plaintiff brought this appeal and assigns for error the lower court’s refusal of his motion for a new trial.
The matter whereof the appellant complains was neither basic nor fundamental error. Indeed, it was not error at all. The learned trial judge properly charged the jury that the burden was on the plaintiff to prove that negligence of the defendants was the proximate cause of the injury for which he sought damages. The court then instructed the jury that, if they found the accident was due to defective brakes on the bus, as the evidence for the plaintiff indicated, it was then incumbent on the defendants (a common carrier) to produce evidence of exculpatory care on their part in respect of the bus’s equipment. That instruction was manifestly correct: see Nebel v. Burrelli, 352 Pa. 70, 74-75, 41 A. 2d 873; and Archer v. Pittsburgh Railways Company, 349 Pa. 547, 548-549, 37 A. 2d 539.
What the plaintiff really complains of is that the trial judge left it to the jury to say whether an inspection of the brakes (merely “cursory” as the court denominated it) by the driver just before descending the hill where the bus went out of control from a failure of its brakes met the burden on the defendants in relevant regard. We fail to see how the court Could have excluded such evidence from the jury’s consideration without risking possible error against the defendants' to the jeopardy of any verdict the plaintiff might recover.- It may well have been for that reason that plaintiff’s, counsel did not- question the particular submission at the time of the. charge. In any. event, it-was [392]*392not until after the jury had retired to deliberate on its verdict that plaintiff’s counsel casually observed, —“I was wondering, your Honor, if that was a fair statement of the law, that the mere fact that the driver had made his effort to test the brakes could be considered by the jury as evidence of exculpation . . . .” Obviously, the subject matter of counsel’s present complaint with the charge was in his mind at the time. Yet, he failed to make any request for further or other instruction. On the contrary, when the trial judge inquired expressly whether plaintiff’s counsel had “anything further”, he replied — “No, your Honor, you have covered everything.”
It is clear that the driver’s testimony about testing his brakes could not properly have been ignored by the court when applying the law to the testimony. The only possible question open to the plaintiff in that connection is whether the trial judge adequately indicated the weakness of that testimony. It was the plaintiff’s duty, if he felt harmed in such regard, to request the court’s elaboration or further instruction with respect to the extent of the probative value of the exculpatory testimony. Counsel, not having so requested, cannot now charge the court with failure to instruct the jury adequately. As said by Mr. Justice Steen in Susser v. Wiley, 350 Pa. 427, 430, 39 A. 2d 616, — “. . . a party may not remain silent and take his chances on a verdict, and then, if it be adverse [or disappointing], complain of an inadequacy which could have been corrected.”
But the charge was not inadequate in the particular assailed by the appellant.' With marked fairness to •the plaintiff,- the trial judge effectively minimized the driver’s testimony as to his testing of the brakes. Thus, the- court said to the jury, — “As I stated originally, if they can establish that this was an accident which occurred-without any fault or negligence on their part, [393]*393then there can he no recovery. However, the defendant did not establish or offer any evidence to exculpate themselves or to show that they were not negligent, and the only evidence that I observed in the case that .might indicate anything in that connection was the testimony of the driver himself [in the plaintiff’s case], who made a cursory examination just before taking the bus out of the terminal. ... It would seem to me that a common carrier upon whom is the burden of exercising the highest degree of care, not only in operating its buses, but in providing a bus that was in good order, should offer additional testimony demonstrating the fact that they were not negligent. That is the situation here insofar as the liability feature of this case is concerned.” The plaintiff could not justly have asked more.
Nor was the plaintiff harmed by the court’s submission of the driver’s exculpatory testimony. As indicated by the last sentence of the foregoing quotation, such testimony went only to the question of the defendants’ liability and the jury held them liable in a not unsubstantial sum. Even had the submission been error, it was harmless in view of the result. Cf. Garris v. Bell, 253 Pa. 33, 34, 97 A. 1034, aff’d. per curiam.
How we could justifiably conclude from the record in this case that the verdict was inadequate is not apparent. Of course, by comparing the amount of the verdict with the extent of damages which the plaintiff asserted, the verdict would appear not to have been compensatory. The fact is, however, that there were serious conflicts in the evidence adduced by the plaintiff with respect to the character of the work he had performed prior to the accident, the effect of the injury on his ability to return to work and the probable duration of his incapacity. It is true that the plaintiff remained away from work for twenty-one months following his injury. However, there is noth-
[394]*394ing but Ms unsupported word to suggest that Ms injury required Mm to remain away from work so long. His doctor and medical witness at trial testified that the injury, as revealed by the X-ray, had healed satisfactorily in ninety days. By his own admission, the plaintiff was driving around seven months after the accident in the automobile which he had just purchased and attended moving picture shows and went walking with the young lady with whom he was keeping company. He very patently tried to create the impression by his testimony that his work at a local steel mill had required him to do heavy lifting for which the injury had incapacitated him, while the fact is that his work for six-sevenths of the time of his employment, as testified to by his witness from the pay department of the steel company, had been clerical, — the same kind of work he was given to do when he finally did return to work. He even resumed the stand to contradict this disinterested witness (his own) who had testified from documentary records. It was the province of the jury to appraise the worth' of the testimony and, in so doing, the jury very evidently did not accredit some of the elements of the plaintiff’s asserted damages. What was said in Zamojc v. Fisher, 127 Pa. Superior Ct. 171, 172, 193 A. 315, is especially apposite here: “The verdict is small, having regard to the plaintiff’s evidence as to his injuries and expenses in connection with them, but it is substantial and not merely nominal .... The amount of the verdict was not enough to reimburse plaintiff for his time lost from work because of the accident, according to his testimony, and for his medical and hospital expenses, without any allowance for pain and suffering. But the jury might well have found that the doctor’s bill was padded, and it was for them to decide whether the injury he received required his absence from work for eighteen-weeks” (Emphasis supplied).'- _ . v .. '.
[395]*395In the instant case, the court en banc in an opinion written by the learned trial judge, who saw and heard the plaintiff and his witnesses, both lay and medical, after a careful review of the evidence as to damages and the conflicts therein, concluded that it could not properly disturb the jury’s finding. The grant or refusal of a new trial for inadequacy of the verdict is a matter for the sound discretion of the trial court whose action will not be reversed on appeal except for a clear abuse of discretion such as where a new trial is refused when the verdict is so unreasonably low as to present a clear case of injustice: Fabel v. Hazlett, 157 Pa. Superior Ct. 416, 422, 43 A. 2d 373; Patterson v. Pittsburgh Railways Company, 136 Pa. Superior Ct. 432, 7 A. 2d 478; and Zamojc v. Fisher, supra, at pp. 172-173. The record in this case discloses no such abuse.
Counsel for the appellant, in his zeal to demonstrate that the verdict is inadequate, has improperly injected-on this appeal, both by brief and oral argument, reference to an offer of settlement made by defendants’ counsel at trial which the plaintiff rejected. Such matter is no part of the record of the case and has no propar place before us. It is just as improper for counsel to try to sway a reviewing court with statements as to offers of settlement made in the course of the litigation as it is to endeavor to impart such information to a jury. A litigant is not to be penalized for the liberality of his offer of settlement which his adversary refused to accept.
Judgment affirmed.