Todd v. Second Avenue Traction Co.

44 A. 337, 192 Pa. 587, 1899 Pa. LEXIS 966

Opinion

Opinion by

Mb. Justice McCollum,

This is a peculiar case and the occurrence on which it is based is a novel one. It is the outcome of a collision imputed to the negligence of the defendant company. Immediately preceding the collision the company’s car was standing on the tracts of the street railway about twenty feet from the lines of railroad operated by the Pennsylvania Company, and facing the same. The safety gates at the crossing were down and a train was passing westward on one of the lines at a moderate rate of speed. As the train was crossing the line of the street railway operated by the defendant company the latter’s car started suddenly and rapidly towards the crossing, broke through the first safety gate, and collided -with the rear car. The plaintiff at the time of the collision was standing in the rear car of the train, and he alleges that the jar it received by the impact threw him against the radiator or stove in the car, and thus produced the injury which he claims has rendered him practically helpless. The testimony descriptive of his condition and the cause of it appears to sustain his claim respecting his injury, and the effect of it. It is not necessary to add anything further to this phase of the plaintiff’s case. Of course, it devolved on him to establish by competent evidence the negligence he imputed to the defendant company, and failing in this, he could not maintain his suit. The question of negligence was not made as clear as it was desirable it should be. The evidence concerning the qualifications and skill of the conductor, the motorman and the dispatcher was not comprehensive or satisfactory. If it was less vague and indefinite on this point it would command more respect and confidence. It is difficult to determine from the evidence whether the starting of the car was caused by improper management of the company’s employees in charge of it, or by defects in the machinery not discoverable by them, or, if discoverable, not within their power to remedy or control. That the employees charged with the operation of the car did not intend to start it while the safety gates were down and a train was on the crossing admits of no doubt, and that they exercised their best skill and judgment in the discharge of their duty as they understood it is too clear for argument. The testimony of the employees having charge of the car does not show any direction from the dispatcher to the motorman to turn on the power or to start the car. It will be noticed, however, that a passenger who was once in the service of the defendant company, and who had been discharged from it, testified that he heard the dispatcher say to the motorman “ that the car was all right to cut over his safety,” that then he saw the motorman “ reach over Ins head with his right hand, the same as though he was going to cut it in,” and that immediately thereafter the car started. He appears to have been the only passenger who heard the remark he imputes to the dispatcher, or saw the movement of the motorman’s right hand contemporaneous with the starting of the car. It seems to be conceded that neither the dispatcher nor any other person having knowledge of the machinery and the manner of operating it would have dared to touch the controller with the power on. It follows from this that when the dispatcher turned or handled the controller the power was off.

Further reference to the collision and its consequences or to the evidence affecting the issues involved is not essential to the decision of the question raised by the assignments. The single question presented by them is whether the charge to the jury was sufficient, or inadequate and misleading. It is claimed that the court failed to instruct the jury that the burden of proving negligence under the circumstances was upon the plaintiff, but we think this claim is sufficiently disposed of by the affirmance of the defendant’s first point. It is also claimed that the court erred in stating to the jury that it was the duty of the defendant “ to furnish reasonably skilled and competent men to operate the cars and the machinery and appliances,” aud in saying, in immediate connection therewith, “ that is just where the plaintiff claims the defendant failed in its duty.” In the above quotations from that part of the charge complained of in the second assignment, we discover no substantial ground for complaint or criticism, and certainly the instruction that it was for the jury to determine whether the defendant exercised proper care under the circumstances was unobjectionable.

The instruction relating to the measure of damages was exceedingly brief. It was nothing more than a perfunctory specification of the items constituting the damage claimed as the result of the negligence attributed to the defendant. The items consisted of expenses incurred as a consequence of the injury received, the inconvenience and suffering naturally resulting from it, and the abridgment or loss of earning power, whether temporary or permanent, consequent upon the character of the injury. No reference to or explanation of the evidence or law applicable to either item was made, and the jury were left without such aid or guidance to a conclusion as they were fairly entitled to. In the recent case of Goodhart v. The Penna. II. Co., 177 Pa. 1, it was held that “ the expenses for which a plaintiff may recover must be such as have been actually paid, or such as in the judgment of the jury are reasonably necessary to be incurred. The plaintiff cannot recover for the nursing and attendance of the members of his own household unless they are hired servants.” In the same case it was held that “ Pain and suffering are not capable of being exactly measured by an equivalent in money and they have, no market price. The question in any given case is not what it would cost to hire someone to undergo the measure of pain alleged to have been suffered by the plaintiff, but what under the circumstances should be allowed the plaintiff in addition to the other items of damage to which he is entitled in consideration of suffering necessarily endured. An instruction that leaves the jury to regard pain as an independent item of damage to be compensated by a sum of money that may be regarded as a pecuniary equivalent is not only inexact but it is erroneous.” Probably the most important item to be considered in a case like the one now before us relates to the loss of earning power. It is not uncommon for jurors to fall into grievous error in ascertaining compensation for such loss. For instance, they have frequently awarded to the injured party such sum as would yield to him at six per cent during his lifetime an annual income equivalent to his earnings when in full health and vigor. Ordinarily adequate instructions on this point would prevent the error, although they were disregarded in Tietz v. Phila. Tr. Co., 169 Pa. 516. In the case at bar the plaintiff’s counsel in their argument to the jury stated that their client, previous to his injury, “ had been earning $960 a year, and that this was equivalent to the interest upon the sum of $16,000 at six per cent per annum, and that they, the jury, were at liberty to take this suggestion into consideration in arriving at the measnre of compensation due to the plaintiff for his loss of earning power.” The learned trial judge did not note this statement in his general charge, and at the conclusion of it the defendants counsel requested of him “ explicit directions to the jury that the measure of dam ages set forth in the statement of counsel for the plaintiff was not the correct measure of damages.” His only answer to this request was as follows: “ The amount stated by the plaintiff’s counsel, in his argument to the jury, is not the measure of damages. You will follow, in estimating the damages, the rule I have given to you irrespective of the claim made by counsel for plaintiff.” The counsel for the defendant excepted to the answer upon, the ground of its inadequacy, and at his instance and request the exception was allowed and the bill sealed for the defendant.

It seems to us that in view of the evidence in the case and the circumstances surrounding it the charge to the jury was inadequate, and especially so in that part of it which related to the plaintiff’s loss of earning power. A decision will therefore be rendered accordingly.

Judgment reversed and venire facias de novo awarded.