Irwin v. Pennsylvania Railroad

75 A. 19, 226 Pa. 156, 1910 Pa. LEXIS 730

• Court: Supreme Court of Pennsylvania
• Decided: January 3, 1910
• Docket: Appeal, No. 176
• Status: Published

Opinion

Opinion by

Mr. Justice Fell,

The plaintiff’s husband was an engineer on the defendant’s road and was killed in an accident caused by the derailment of a freight car and its projection on the track on which his engine was running. The derailment of the car was caused by a broken flange of one of its wheels, and there was testimony tending to show that the break in the flange was an old one and existed when the car was received at the defendant’s yard, which was a place for regular inspection; that the break would have been discovered if a proper inspection had been made; that if any inspection was made, it was made by an inexperienced and inadequately instructed employee who failed to make the usual tests. This testimony made out a prima facie case which could not have been withdrawn from the jury, and we find no error in its submission that requires a reversal of the judgment.

The only assignments of error that need be noticed are the first and second. The parts of the charge included in these assignments, standing alone, are open to the objection urged against them, because the measure of damages in such a case is not the amount of the probable earnings of the deceased that would have gone to the support of his family, but the present value thereof. But these excerpts from the charge do not fully set out what was said by the court on the subject. In immediate connection with them it was said that the verdict “if for the plaintiff will be given for a lump sum, and it would draw interest from the date of the verdict. If Mr. Irwin had lived, his earnings would have been monthly and not as a lump sum, so that the jury can take into consideration in arriving at your verdict, if for the plaintiff, it will be for a net sum, which would draw interest from the time the verdict is rendered.” This was a correct statement of the rule, although perhaps not so clear and explicit as desirable to insure its full understanding by the jury. It was, however, satisfactory to counsel at the time, and if fuller and plainer instructions were desired, they should have been asked for.

The judgment is affirmed.