Arnold v. McKelvey
Arnold v. McKelvey
Opinion of the Court
Opinion by
The plaintiffs, Harry Arnold and Mary, his wife, sued in trespass to recover damages for personal injuries to the latter, alleged to have been caused on September 18, 1911, by the negligence of the defendant’s chauffeur in operating an automobile; the verdicts favored the plaintiffs and the defendant has appealed.
In disposing of appellant’s principal contention, we shall first quote from the opinion of the court below: “The accident occurred on the west side of South Third street, between Pine and Ferry streets, in the City of Easton; the automobile was going south......, and Mary Arnold was crossing.......diagonally from the east to the west side. The plaintiffs’ evidence tended to show that, when Mrs. Arnold was aproaching the west side of the street, she first noticed -the car approaching from the north. She then stopped at a place of safety to
We see no reversible error in the following instructions, stated in reply to one of defendant’s requests for charge: “The pedestrian must use such care and caution as an ordinarily careful and prudent person would exercise under the circumstances in the case, and more
We shall state the appellant’s last contention in the words of his assignment of error in relation thereto: “The court below erred in refusing and denying the motion of the defendant to dismiss a juror and continue the case, which was as follows: In the course of Mr. Fackenthall’s closing address to the jury he referred to the testimony of witnesses for the plaintiffs to the effect that Frank Suess, the chauffeur, who was on the front seat and driving the car at the time of the accident, turned to talk to Mrs. McKelvey, who was on the rear seat, and that, as he turned, the car turned towards Mrs. Arnold; that Frank Suess was in court during the course of the trial and was identified by several witnesses ; and also referred to the fact that Frank Suess was not called by the defense as a witness to deny this contention of the plaintiffs as to negligence.” It appears that, when the above recited remarks were objected to,
The assignments are all overruled and the judgment is affirmed.
Reference
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- Syllabus
- Negligence — Automobiles—Pedestrians—Street crossings — Contributory negligence — Trials—Remarles of counsel — Case for jury. 1. Ordinary care must be observed by vehicle drivers and pedestrians at all times at and between crossings. More care is required to'be exercised by an automobile about to pass over a street crossing than between crossings; and more care is required of pedestrians between crossings than at crossings. 2. In an action to recover damages for personal injuries sustained by plaintiff as a result of being struck by defendant’s automobile which was being operated by defendant’s chauffeur within the scope of his employment, the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury and a verdict for the plaintiff was sustained where it appeared that while plaintiff was attempting to cross a public street between crossings she observed plaintiff’s ear approaching and waited to allow it to pass, but that defendant’s chauffeur turned to speak to another occupant of the car and in so doing caused the car to swerve and struck the plaintiff. 3. In such case reference by the counsel for the plaintiff in his closing address to the jury to the fact that the defendant’s chauffeur, who was in the court room and had been identified during the trial, had not been called as a witness in the defendant’s behalf was within the limit of reasonable comment by counsel.