Devine v. Philadelphia Rapid Transit Co.

Superior Court of Pennsylvania

Devine v. Philadelphia Rapid Transit Co.

90 Pa. Super. 300, 1927 Pa. Super. LEXIS 63

CourtSuperior Court of Pennsylvania

DecidedOctober 27, 1926

DocketAppeal 254

StatusPublished

This text of 90 Pa. Super. 300 (Devine v. Philadelphia Rapid Transit Co.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Devine v. Philadelphia Rapid Transit Co., 90 Pa. Super. 300, 1927 Pa. Super. LEXIS 63 (Pa. Ct. App. 1926).

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Opinion

Opinion by

Linn, J.,

Plaintiff, a passenger, was injured; liability was conceded; at the trial the only question was the amount payable. She was injured November 10th, 1923, remained away from her employment five weeks, returned to it and received the same wages, $20 a week, she had received before and continued to receive those wages until July 1924, when they were reduced to $18 a week. There is no evidence why they were reduced, she herself testified she did not know. In instructing the jury, the court said nothing concerning loss of earnings or impaired earning power, merely stating, — and it was sufficient — that as she had lost five weeks’ wages, she was entitled to $100 for that item. The jury was also instructed to include the medical expenses shown by the evidence to have been incurred, and compensation for pain and suffering. A fair reading of the charge leads to the conclusion that the jury was not instructed to award anything for future pain and suffering, or impaired earning power.

*302 This would seem to be in accord with the record and with the view of plaintiff’s counsel, who in his brief says: “The testimony of plaintiff herself indicated very dearly that she was not seeking to recover for the reduction in wages since she very frankly stated that she did not know why her wages were reduced”.

At the conclusion of the charge, however, counsel for plaintiff said: “I would ask your honor to charge on the loss of earnings as the result of the impaired earning power”. The court replied, “The jury heard the testimony of the plaintiff on that, as to what she did get and what she was getting and why she got a reduced amount. The jury will remember just what she said”. Counsel for defendant then said that he had been on the point of asking the court to charge that the jury could not take that reduction of wages into consideration, and accordingly excepted to the supplementary instruction given. The court replied, “I am not charging o<n that, I have told the jury it is for them to remember what she said”. If we understand what the court meant, the instruction justified the jury in attributing, the reduction in wages to the accident; and it was not in accordance with the evidence to state that the jury heard “why she got a reduced amount,” for she testified that she did not know why. The instruction was so misleading as to require us to sustain the 12th assignment of error raising the point.

As the ease goes back for a new trial, it is not necessary to discuss other assignment stressed in appellant ’s brief, because the questions may not arise again, though we may say that no instruction on present worth is necessary when no compensation is claimed for any period after trial: McCaffrey v. Schwartz, 285 Pa. 561.

Judgment reversed and new trial awarded.

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Opinion by

Linn, J.,

Plaintiff, a passenger, was injured; liability was conceded; at the trial the only question was the amount payable. She was injured November 10th, 1923, remained away from her employment five weeks, returned to it and received the same wages, $20 a week, she had received before and continued to receive those wages until July 1924, when they were reduced to $18 a week. There is no evidence why they were reduced, she herself testified she did not know. In instructing the jury, the court said nothing concerning loss of earnings or impaired earning power, merely stating, — and it was sufficient — that as she had lost five weeks’ wages, she was entitled to $100 for that item. The jury was also instructed to include the medical expenses shown by the evidence to have been incurred, and compensation for pain and suffering. A fair reading of the charge leads to the conclusion that the jury was not instructed to award anything for future pain and suffering, or impaired earning power.

*302 This would seem to be in accord with the record and with the view of plaintiff’s counsel, who in his brief says: “The testimony of plaintiff herself indicated very dearly that she was not seeking to recover for the reduction in wages since she very frankly stated that she did not know why her wages were reduced”.

At the conclusion of the charge, however, counsel for plaintiff said: “I would ask your honor to charge on the loss of earnings as the result of the impaired earning power”. The court replied, “The jury heard the testimony of the plaintiff on that, as to what she did get and what she was getting and why she got a reduced amount. The jury will remember just what she said”. Counsel for defendant then said that he had been on the point of asking the court to charge that the jury could not take that reduction of wages into consideration, and accordingly excepted to the supplementary instruction given. The court replied, “I am not charging o<n that, I have told the jury it is for them to remember what she said”. If we understand what the court meant, the instruction justified the jury in attributing, the reduction in wages to the accident; and it was not in accordance with the evidence to state that the jury heard “why she got a reduced amount,” for she testified that she did not know why. The instruction was so misleading as to require us to sustain the 12th assignment of error raising the point.

As the ease goes back for a new trial, it is not necessary to discuss other assignment stressed in appellant ’s brief, because the questions may not arise again, though we may say that no instruction on present worth is necessary when no compensation is claimed for any period after trial: McCaffrey v. Schwartz, 285 Pa. 561.

Judgment reversed and new trial awarded.

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90 Pa. Super. 300, 1927 Pa. Super. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devine-v-philadelphia-rapid-transit-co-pasuperct-1926.

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