Opinion by
Orlady, P. J.,The plaintiff’s husband, a man aged 79 years at the time of his death, November 22, 1916, was run down by an automobile driven by the defendant’s son, while the decedent was standing on a public highway, at a regular stopping place of street cars, intending to take passage thereon. It was a dark night, and the driver was going about 15 miles an hour, and admittedly on the wrong side of the road, under the rules of travel. The trolley *191car on which the decedent intended to take passage arrived soon after the old man was struck.
The statement of claim alleged that the son, who “was the agent of the defendant, knew that the point where the decedent was standing was a regular stopping place for the purpose of discharging and taking on of passengers, yet, notwithstanding such knowledge and the further fact that he saw the decedent standing at this point, near the tracks, unlawfully, recklessly, carelessly, and negligently turned the automobile from the right side of the road toward the tracks of the street railway company, and toward the point where the decedent was standing,” inflicting the injuries upon him from which he died.
The trial was conducted with such fairness that no exception was taken to the charge of the court, though counsel was asked if there was anything further they desired to have the jury instructed about. If a party does not avail himself of a legal position that was fairly before him had he desired to use it, he cannot on appeal raise it to the prejudice of the opposing party, who might thus be deprived of bringing forth evidence that would be necessary to meet the legal position assumed: Morrett v. Fire Association of Phila., 265 Pa. 9.
The only assignment of error relates to the examination of the defendant, who was the father of the driver and the owner of the car. He was called for cross-examination by the plaintiff without any objection, as shown by the record, and the following occurred: Q. How old was your son? A. Twenty years. Q. He was working for you? A. Yes, sir. Q. How long had he been driving an automobile for you? A. Two years already. Q. Was he a good driver? A. Yes, sir. Q. A safe driver? A. Yes, sir. Q. Did he ever have any similar accidents to this before? (by Mr. Mauch) : That is objected to. (By the Court) : The objection is overruled. The witness said he was a safe driver. Exception for the defendant. Bill sealed. Q. Did he ever run into anybody before? A. Yes, sir. Q. How many peo-*192pie did lie run into?. A. Only one before. Q. Who was that. A. I don’t know the name any more. Q. Up in Allentown was it? A. Yes, sir. Q. What happened to that person, did he kill him? A. Yes, sir. Q. Did he run into anybody else? A. Not that I know of.
The defendant, to relieve himself of liability, testified that his son then acted as his agent in his business, was a good and safe driver, and it was but fair that his contention as to the efficiency and safety of the driver, to whom he committed the care of his car, should be tested.
In view of the preceding questions, which were answered without objection, the one to which exception is taken was properly propounded, as the defendant should not have the benefit of the questions and answers favorable to his side, and then ask the court to exclude that which might tend to destroy their value before a jury. He had a further opportunity to ask the court to specifically charge the jury in regard to it.
The fact that there had been a former collision, as testified to by the defendant, only became important in testing his judgment as to what constituted a good and safe driver, and that fact, with others of a similar nature suggested, might readily have been proven by other witnesses, had the defendant answered differently, but having admitted the fact, the plaintiff may have been misled, and did not deem it necessary to further establish a fact admitted by the defendant, so as to fix the recklessness of his agent in travelling 15 miles an hour, with dim lights on a dark night, on a public highway, at a streetcar stopping point.
The assignment of error is overruled, and the judgment is affirmed.