Opinion by
Me. Justice Dean,
The plaintiff, about thirty-four years of age, was an oil inspector for the United States Pipe Line Company and resided for a number of years at Oil City, Pennsylvania. While a passenger on defendant’s train on March 10, 1903, a collision occurred whereby he was seriously injured. Alleging his injuries were caused by the negligence of the company lie brought this suit for damages. There was no contradiction of his testimony, that he was injured in the collision, but there was a serious conflict as to the nature of his injuries, their extent, whether he had been incapacitated thereby, and the probable duration of the incapacity, whether permanent or only temporary. The court submitted the evidence bearing on the different questions raised to the jury, who found a verdict for plaintiff in the sum of $21,440. Judgment having been entered on this verdict the railroad company brings this appeal assigning fifteen errors.
[166]*166The last two, the fourteenth and fifteenth, claiming, that under the authority of Smith v. Times Publishing Co., 178 Pa. 481 the verdict is erroneous because excessive, we pass with a very brief notice. There are but few appellants who have a verdict against them, that do not regard it as excessive; most of them think there should have been none at all. The alleged injustice is a mere matter of opinion on their part in which the jury having before them the whole evidence widely differed from them. The “ Times ” case, although the law in that and every other case with like facts, under the act of 1891 was not intended as an invitation to every dissatisfied suitor to bring his case here by alleging error of “ excessive verdict.” When the verdict, as in the case cited, is so grossly excessive as to shock our sense of justice, we will seriously consider and pass on the assignments of error, not otherwise. In the years that have passed since that case was decided, although the same error has been alleged in numerous cases that have come before us, in not one of them has it been sustained and from our observation it will rarely be sustained in the future. So as to these two assignments, we overrule them both; wo could not do otherwise, unless we arbitrarily said we do not believe the testimony of plaintiff’s reputable expert witnesses who had every opportunity to ascertain the truth as to matters about which they testified. It is argued with much earnestness, that this is a power we ought to exercise unflinchingly to prevent injustice being done by prejudiced juries. If by this is meant we ought to exercise the power in every case where our judgment differs from that of the jury and the court below, we say no; on the contrary, we ought to and will exercise it very sparingly as heretofore. Especially will we shrink from disturbing a verdict on this ground when the trial judge has by entering judgment approved it.
The assignments first to fourth inclusive, complain of the court permitting plaintiff to detail minutely the results of his injuries, the incontinence of urine, irregularity of bowels and such like, especially as such results were not particularly averred in the declaration. . The plaintiff’s declaration, it is true, is somewhat general, but it avers with sufficient clearness and precision the collision, that plaintiff was injured, the damages he sustained and that his injuries were caused by the negligence [167]*167of defendant. On proper cause shown, we have no doubt the learned judge of the court below, before trial would have compelled him to more particularly specify such results; but it went to trial without such application and has no excuse for alleging surprise now after verdict. In fact from the testimony of its own expert witnesses we doubt if it was greatly surprised. Therefore these four assignments are overruled.
The fifth assignment is to the admission of plaintiff’s testimony, that since his injury he had refused remunerative employment in his business. The court admitted this because it would tend to show the kind of work plaintiff, as he alleged, was unable to perform after the injury, so tending to show the nature of his injuries; it was not admitted for the purpose of showing what he might have received for such work had he been able to perform it. Plaintiff’s counsel may have argued inferentially, from his answers, that his compensation would, have been large, but the court committed no error in its qualified admission of the evidence. This assignment is overruled.
Appellant’s sixth, seventh, tenth, eleventh, twelfth and thirteenth assignments are all in effect to the charge of the court. We have examined them carefully and must say in view of the evidence, that there is not the semblance of well-founded error in any of them. For example, it is argued by appellant in his sixth assignment that it is an accepted theory of the surgical world that a man whose spine is dislocated cannot walk. Dr. Brush testified that a case came before him of a man with a dislocated spine who did walk. In commenting on this the learned trial judge said: “ Now, gentleman, how is this ? If the one is theory and is contradicted by facts, theories must always give way to facts, so that the question is one for the jury.” We see no error in this; all sound theories must be based on or be deducible from facts; if it be an accepted theory that a man with a dislocated spine cannot walk, then if it be established that a single man with a dislocated spine does walk, the theory must be narrowed or modified to one which accords with the facts, that men with dislocated spines seldom walk, or if the facts of walking become too numerous, the theory falls.
In none of these assignments to the comments of the learned judge do we discover anything more serious than that we have noticed; all are overruled.
[168]*168The eighth and ninth assignments raise a more serious question. As the ninth practically includes the eighth we shall discuss it alone. Plaintiff in his third point asked the court to instruct the jury as follows:
“ If the jury find that the plaintiff has rendered' no services to his employer, the United States Pipe Line Company, since the time of the accident, they are not to allow in mitigation of damages any salary he may have received from his employer since the accident.”
“ The court: We answer that by saying that it is affirmed, unless the jury find that the amount so paid to plaintiff was by way of compensation for services rendered by the plaintiff and not as a mere gratuity, as we have already explained in the general charge.”
The argument is, that there was no evidence to justify the qualification by which the court left it to the jury to find whether the money received by plaintiff from his employer, the pipe line company, was a gratuity. There is no doubt but that after the injury plaintiff received from the company his regular salary. The plaintiff testifies that he often went to the refineries at Oil City after his injury and performed services for the company for which it and another company paid him $2,800 per year, just the sum he received before. Plaintiff’s own testimony as to just how long after the injuries these payments continued is not clear but they continued for some time; it is clear, however, that during all the time he was receiving payment except for a few weeks when consulting surgeons he was performing services for his company, while not of the same extent perhaps as before the injury, they were of the same character.
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Opinion by
Me. Justice Dean,
The plaintiff, about thirty-four years of age, was an oil inspector for the United States Pipe Line Company and resided for a number of years at Oil City, Pennsylvania. While a passenger on defendant’s train on March 10, 1903, a collision occurred whereby he was seriously injured. Alleging his injuries were caused by the negligence of the company lie brought this suit for damages. There was no contradiction of his testimony, that he was injured in the collision, but there was a serious conflict as to the nature of his injuries, their extent, whether he had been incapacitated thereby, and the probable duration of the incapacity, whether permanent or only temporary. The court submitted the evidence bearing on the different questions raised to the jury, who found a verdict for plaintiff in the sum of $21,440. Judgment having been entered on this verdict the railroad company brings this appeal assigning fifteen errors.
[166]*166The last two, the fourteenth and fifteenth, claiming, that under the authority of Smith v. Times Publishing Co., 178 Pa. 481 the verdict is erroneous because excessive, we pass with a very brief notice. There are but few appellants who have a verdict against them, that do not regard it as excessive; most of them think there should have been none at all. The alleged injustice is a mere matter of opinion on their part in which the jury having before them the whole evidence widely differed from them. The “ Times ” case, although the law in that and every other case with like facts, under the act of 1891 was not intended as an invitation to every dissatisfied suitor to bring his case here by alleging error of “ excessive verdict.” When the verdict, as in the case cited, is so grossly excessive as to shock our sense of justice, we will seriously consider and pass on the assignments of error, not otherwise. In the years that have passed since that case was decided, although the same error has been alleged in numerous cases that have come before us, in not one of them has it been sustained and from our observation it will rarely be sustained in the future. So as to these two assignments, we overrule them both; wo could not do otherwise, unless we arbitrarily said we do not believe the testimony of plaintiff’s reputable expert witnesses who had every opportunity to ascertain the truth as to matters about which they testified. It is argued with much earnestness, that this is a power we ought to exercise unflinchingly to prevent injustice being done by prejudiced juries. If by this is meant we ought to exercise the power in every case where our judgment differs from that of the jury and the court below, we say no; on the contrary, we ought to and will exercise it very sparingly as heretofore. Especially will we shrink from disturbing a verdict on this ground when the trial judge has by entering judgment approved it.
The assignments first to fourth inclusive, complain of the court permitting plaintiff to detail minutely the results of his injuries, the incontinence of urine, irregularity of bowels and such like, especially as such results were not particularly averred in the declaration. . The plaintiff’s declaration, it is true, is somewhat general, but it avers with sufficient clearness and precision the collision, that plaintiff was injured, the damages he sustained and that his injuries were caused by the negligence [167]*167of defendant. On proper cause shown, we have no doubt the learned judge of the court below, before trial would have compelled him to more particularly specify such results; but it went to trial without such application and has no excuse for alleging surprise now after verdict. In fact from the testimony of its own expert witnesses we doubt if it was greatly surprised. Therefore these four assignments are overruled.
The fifth assignment is to the admission of plaintiff’s testimony, that since his injury he had refused remunerative employment in his business. The court admitted this because it would tend to show the kind of work plaintiff, as he alleged, was unable to perform after the injury, so tending to show the nature of his injuries; it was not admitted for the purpose of showing what he might have received for such work had he been able to perform it. Plaintiff’s counsel may have argued inferentially, from his answers, that his compensation would, have been large, but the court committed no error in its qualified admission of the evidence. This assignment is overruled.
Appellant’s sixth, seventh, tenth, eleventh, twelfth and thirteenth assignments are all in effect to the charge of the court. We have examined them carefully and must say in view of the evidence, that there is not the semblance of well-founded error in any of them. For example, it is argued by appellant in his sixth assignment that it is an accepted theory of the surgical world that a man whose spine is dislocated cannot walk. Dr. Brush testified that a case came before him of a man with a dislocated spine who did walk. In commenting on this the learned trial judge said: “ Now, gentleman, how is this ? If the one is theory and is contradicted by facts, theories must always give way to facts, so that the question is one for the jury.” We see no error in this; all sound theories must be based on or be deducible from facts; if it be an accepted theory that a man with a dislocated spine cannot walk, then if it be established that a single man with a dislocated spine does walk, the theory must be narrowed or modified to one which accords with the facts, that men with dislocated spines seldom walk, or if the facts of walking become too numerous, the theory falls.
In none of these assignments to the comments of the learned judge do we discover anything more serious than that we have noticed; all are overruled.
[168]*168The eighth and ninth assignments raise a more serious question. As the ninth practically includes the eighth we shall discuss it alone. Plaintiff in his third point asked the court to instruct the jury as follows:
“ If the jury find that the plaintiff has rendered' no services to his employer, the United States Pipe Line Company, since the time of the accident, they are not to allow in mitigation of damages any salary he may have received from his employer since the accident.”
“ The court: We answer that by saying that it is affirmed, unless the jury find that the amount so paid to plaintiff was by way of compensation for services rendered by the plaintiff and not as a mere gratuity, as we have already explained in the general charge.”
The argument is, that there was no evidence to justify the qualification by which the court left it to the jury to find whether the money received by plaintiff from his employer, the pipe line company, was a gratuity. There is no doubt but that after the injury plaintiff received from the company his regular salary. The plaintiff testifies that he often went to the refineries at Oil City after his injury and performed services for the company for which it and another company paid him $2,800 per year, just the sum he received before. Plaintiff’s own testimony as to just how long after the injuries these payments continued is not clear but they continued for some time; it is clear, however, that during all the time he was receiving payment except for a few weeks when consulting surgeons he was performing services for his company, while not of the same extent perhaps as before the injury, they were of the same character. The treasurer of the company testifies that he paid plaintiff every month since the injury just as before ; that he had one vacatiozr lasting a month or two during that time. The coznpany eoxztinued to pay his regular salary after his injury, azid so far as his own testimoziy and that of the treasurer shows, the paymezit was for services, izzefficient perhaps coznpared to those before his injury, but still for services rezidered by him to the coznpany. In the general charge to which the court refers the jury it says : “ If on the other hand he did not perfoz’m any services from the time of the accident and it was given more as a gratuity, a gift ozi the paz't of [169]*169the company, we say that that would not affect your consideration of the case, but he would be entitled to recover for the lost earnings as though he had not received that gratuity or gift.” Taking the general charge and answer to the point together, we think injustice was done defendant. True, the amount covered by the error is only a small part of the whole, still it was a substantial injustice. We can find no evidence in this voluminous paper-book which warranted the court in leaving it to the jury to find that this payment was a gratuity; on the contrary the evidence clearly shows the payment was practically for the same character of services he had rendered before the accident.
Counsel for appellee say they adopt as a clear exposition of the law tlie court’s answer to plaintiff’s third point. So do we, but the trouble is not with the law but with the evidence. The authorities cited by counsel abundantly sustain his argument; but from the evidence this was not a mere gratuity but wage or salary and as the very foundation of the suit is plaintiff’s loss of earning power in the years succeeding the accident, there is no reason why he should be compensated for loss of earning power in the past when according to liis own evidence that power was practically unabated for a year or two after the accident. The error was in permitting the jury to compensate him for earnings he had actually received. We think the court below, inadvertently perhaps, failed to make the distinction.
The eighth and ninth assignments are, therefore, sustained, the judgment is reversed and a v. f. de novo awarded.