Opinion by
Mr. Justice Williams,
This case is in some respects a remarkable one. The plaintiff is a journeyman tinner who worked at roofing and cornice work. He earned when at work two dollars and a half per day or fifteen dollars per week. In August, 1892, while at work upon the roof of a two story building he fell to the ground, striking upon the brick pavement in the back yard of an adjoining property. When his fellow workmen reached him he was lying where he struck and was unable to move or speak. He was carried from the yard on a litter and taken to a hospital. Here it was found that both bones of one leg were broken ánd the bones about the ankle joint. He was also bruised about the [521] head and body. When able to speak he complained of numbness or loss of sensation in the injured leg and in the back. He was also afflicted for some weeks with retention of urine, and the regular use of a catheter became necessary. At the end of forty days he was able to move about with the aid of two crutches and was discharged from the hospital in this condition. He continued to improve slowly for some three months and was able to lay aside his crutches. At this time, and before he had resumed work of any sort he became a passenger on one of the defendant’s street cars, and while upon the car a collision occurred. The jar occasioned by it did not jostle any other passenger from his position, but the plaintiff who was standing on the rear platform was thrown forward against the glass window in front of him and the skin was broken along the ridge of his nose by contact with the glass. No other injury was visible, or was complained of at the time. The plaintiff left the car and walked back to his home a distance of half a mile or more. From the time of this accident he says he was confined to his bed for three weeks, when he began to improve, and thereafter continued to gain slowly until he began work as a canvassing agent for a laundry, going about with a horse and wagon collecting articles, taking them to the laundry, and returning them again to their owners. This business he was still engaged in at the time of the trial. He alleged however that he was disabled for work at his trade because of a severe injury to his spine resulting from the jar suffered while on the street car, and that his earning power was largely and permanently impaired thereby. The defendant did not deny that the plaintiff’s spine was in a diseased condition, but alleged that it was duo to the injury received at the time of his fall, which was an adequate cause to account for it and which, it was argued, did in fact produce the condition from which the plaintiff was suffering. It was further contended, that the jar resulting from the collision was not an adequate cause, inasmuch as it was not severe enough to jostle any other person from his position in the car whether such person was seated or standing. It is very plain therefore that the great question of fact for the jury was whether the spinal disease from which the plaintiff was suffering at the trial was occasioned by his fall from the roof of a two story building to a brick pavement below, or by the jolt [522] received while on the street car of the defendant company. If it was found to be the result of the fall there was the further question as to what injury had been suffered as the result of the jolt by the cutting of the face, or other consequence of the plaintiff’s loss of his equilibrium.
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Opinion by
Mr. Justice Williams,
This case is in some respects a remarkable one. The plaintiff is a journeyman tinner who worked at roofing and cornice work. He earned when at work two dollars and a half per day or fifteen dollars per week. In August, 1892, while at work upon the roof of a two story building he fell to the ground, striking upon the brick pavement in the back yard of an adjoining property. When his fellow workmen reached him he was lying where he struck and was unable to move or speak. He was carried from the yard on a litter and taken to a hospital. Here it was found that both bones of one leg were broken ánd the bones about the ankle joint. He was also bruised about the [521] head and body. When able to speak he complained of numbness or loss of sensation in the injured leg and in the back. He was also afflicted for some weeks with retention of urine, and the regular use of a catheter became necessary. At the end of forty days he was able to move about with the aid of two crutches and was discharged from the hospital in this condition. He continued to improve slowly for some three months and was able to lay aside his crutches. At this time, and before he had resumed work of any sort he became a passenger on one of the defendant’s street cars, and while upon the car a collision occurred. The jar occasioned by it did not jostle any other passenger from his position, but the plaintiff who was standing on the rear platform was thrown forward against the glass window in front of him and the skin was broken along the ridge of his nose by contact with the glass. No other injury was visible, or was complained of at the time. The plaintiff left the car and walked back to his home a distance of half a mile or more. From the time of this accident he says he was confined to his bed for three weeks, when he began to improve, and thereafter continued to gain slowly until he began work as a canvassing agent for a laundry, going about with a horse and wagon collecting articles, taking them to the laundry, and returning them again to their owners. This business he was still engaged in at the time of the trial. He alleged however that he was disabled for work at his trade because of a severe injury to his spine resulting from the jar suffered while on the street car, and that his earning power was largely and permanently impaired thereby. The defendant did not deny that the plaintiff’s spine was in a diseased condition, but alleged that it was duo to the injury received at the time of his fall, which was an adequate cause to account for it and which, it was argued, did in fact produce the condition from which the plaintiff was suffering. It was further contended, that the jar resulting from the collision was not an adequate cause, inasmuch as it was not severe enough to jostle any other person from his position in the car whether such person was seated or standing. It is very plain therefore that the great question of fact for the jury was whether the spinal disease from which the plaintiff was suffering at the trial was occasioned by his fall from the roof of a two story building to a brick pavement below, or by the jolt [522] received while on the street car of the defendant company. If it was found to be the result of the fall there was the further question as to what injury had been suffered as the result of the jolt by the cutting of the face, or other consequence of the plaintiff’s loss of his equilibrium.
The first assignment of error complains that the charge of the learned judge did not properly submit these questions, but that in its treatment of them it was inadequate and unfair. We do not understand that partiality or intentional unfairness is charged, but that the inadequacy of the charge was such as to work unfairness to the defendant. Turning to the charge we find that the learned judge begins by saying “ I think we are all tired, jury and court, and counsel, and all.” Continuing, he said, “I have not the time to go through all of ” the facts that should be considered, but added, “ I can give you some notion of them.” He then directed the attention of the jury to the diseased condition of the plaintiff, stated that the negligence of the defendant in the management of the car was “ unquestioned,” and told them there was no contributory negligence on the part of the plaintiff.. He then stated the question to be “how far did the defendant injure the plaintiff?” To guide them in determining this question he referred briefly to the medical testimony relating to the character of the plaintiff’s disease and its probable cause, and told them that from this testimony the question was raised “ how far the defendant would be liable,” on the supposition that certain facts should be found by the jury. These are referred to in the third specification of error. They are these: “Supposing his spine was originally injured (by the fall), and supposing the retention of the urine passed away and was not followed by incontinence of urine, and supposing he was getting better of the concussion of the spine (occasioned by the fall), if the second accident (the jolt on the car), even though it did not cause the present symptoms, revived a disease .... which might or might not have developed without the accident ” (the jolt). If these supposed facts were found they were told they might hold the defendant liable for the results of a disease it did not cause and which might have assumed the same proportions if the accident on the car had never happened. But we will use the words of the charge upon this point. They are, “ If on the other hand the first acci[523] dent laid tlie foundations for it” (plaintiff’s present condition) “and he was getting better, and the second accident revived the disease which perhaps afterwards would not have been revived ” (and, perhaps would have been) “ then you can ascribe the condition to the second accident.” The learned judge then referred to the position taken by the defendant that the accident on the car was not violent enough to produce any serious injury and dealt summarily with it in this fashion: “It may be,” said he, that what would not have affected a man in sound health did affect him. Of course men in a weak condition of health have rights the same as those in a sound condition of health.” With this remark this line of defense was dismissed from consideration. What had been in fact submitted to the jury except the amount of the damages it would be difficult to see. In the language of the assignment of error this charge was inadequate; so inadequate as to be in its effect upon the jury misleading, and in its effect upon the defense unfair. The result was a verdict of little less than twenty-seven thousand dollars. The learned judge had said to the jury upon the subject of damages “You have no right to capitalize his earning power at a sum which would yield the amount he would have earned, say at six per cent during his life, for when he dies, no matter what his earning power would have been, it would have come to an end.” If the' loss in earning power be what the plaintiff claims, thirteen dollars per week,nand no allowance be made for vacations, sickness or want of work, but every day in the year be counted, his total loss of earning power might be six hundred and seventy-six dollars per year. The amount of the verdict put at interest at six per cent would yield an income of sixteen hundred and twenty dollars per year. The jury did just what the learned judge told them they must not do. They capitalized the plaintiff’s loss of earning power. They emphasized their disregard of the instructions of the court by nearly trebling the sum so arrived at. The verdict should have been promptly set aside for this reason alone. When a motion was made to set it aside the learned judge for some reason that we cannot discover refused it, and entered judgment on the verdict without abatement or modification. This is not assignable for error, but in view of the explicit direction to the jury as to their duty in the premises, it deserves mention as one of the notice[524] able things upon this record. We should have been gratified, and perhaps helped in the disposition of this case, if the learned judge had placed his reasons for sustaining a verdict, rendered in fiat violation of his instructions, in some substantial form on the record. But we sustain the first assignment of error. The charge was inadequate. It contained no clear statement of the questions involved and no adequate presentation of either of them. The second, third and fourth assignments are also sustained and for the same reason. The treatment of the subjects referred to therein is wanting in clearness and fullness.
The length of the trial and the fatigue incident to it are no doubt responsible for the haste and inadequacy of the charge, but they cannot remove the well grounded objections urged against it in this court. It is the fact of inadequacy from which the defendant suffers, and of which we are bound to take notice.
The judgment is reversed and a venire facias de novo is awarded.
Dean, J., dissents from reasons, but concurs in judgment.