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street car, where the evidence tends to show that plaintiff's brother was a careful and competent driver, and that there was no imminent danger in permitting a capable driver to cross the street car track, the question whether the occasion required plaintiff to act differently, and whether she was negligent in permitting the driver to attempt the crossing, are for the jury. [Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 117.*] 4. STREET RAILROADS (§ 99*) – OPERATION PERSONAL INJURIES-CONTRIBUTORY NEGLIGENCE. Where plaintiff, without her fault, was placed in danger of a collision between the wagon in which she was riding and defendant's street car by the negligence of defendant, and she had a Well-grounded fear that the collision would result in serious injury to her, it was not negligence for her to leap from the wagon to escape the danger, though that was not the wisest or safest course. [Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 209–216; Dec. Dig. § 99.*]

5. APPEAL AND ERROR (§ 1068*) – REVIEW HARMLESS ERROR—INSTRUCTIONs.

- Where the verdict shows that defendant in

a personal injury case was not injured by re

marks of the judge as to the measure of dam

ages, such remarks constitute no ground for re

versing the judgment.

[Ed. Note.—For other cases, see Appeal and # Cent. Dig. §§ 4225-4228; Dec. Dig. §

Appeal from Court of Common Pleas, Blair County.

Action by Mary A. Walsh against the Altoona & Logan Valley Electric Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

- Trespass tO TeCOVer damageS for perSOnal In JUI"IeS. On July 4, 1906, P. J. Walsh, a resident of Tyrone, Blair county, with his family, conSisting Of himself, his Wife, four Sons, and four daughters, spent the day driving in a wagon containing four seats, and drawn by tW0 horSeS. The front Seat Was Occupied by the father, a little daughter, and a son, aged 15% years, who was driving. The secOnd Seat Was Occupied by the mother and another daughter. The third Seat Was Occupied by the plaintiff, aged 23 years, her brother, aged 25, and a sister, aged 11. The fourth Seat was occupied by two brothers. They spent the day in the Country, and upon returning home in the evening, between 7 and 8 o’clock, crossed Washington avenue, in Tyrone, and drove up Tenth Street parallel With the defendant Company’s car track toward Lincoln avenue, which was just a Square above, keeping On the right-hand Side. The track makes a Short Curve at the corner Of Tenth Street, and runs out Lincoln avenue to East Tyrone. When the team attempted to cross this sharp curve, a car came around the corner. Whether the car struck the Wagon, or stopped before getting to the wagon, was in dispute. Plaintiff, Mary A. Walsh, Seeing the car coming, jumped out of the wagon and injured her ankle.

The court charged in part as follows: “Possibly I would not take a thousand dollars to endure toothache for a week, but, at the Same time, if the dentist injured my tooth, so that I had toothache for a week, it would not be fair and right, unless he did it willfully, to impose $1,000 damage on that dentist. Then She Would be entitled, if the injury was permanent, to damages for permanent inconvenience and permanent pain and Suffering. If the testimony ShoWS that she will endure pain and suffering for the injury, and if you come to this question of permanent injury, it Would be your duty to be conservative in the matter. To illustrate my thought: Suppose that I was on the jury, and I concluded that the plaintiff should be entitled to $100 a year, the most natural thought that would come to my mind would be that in order to give the plaintiff $100 a year I should render a verdict of $1,700, beCauSe if you make a calculation you will discover that $1,700, if invested, will produce about $100 a year; but that is not the basis to go on in determining the amount to be given for permanent injury, because this lady will die some time, and then there is no reason why there should be anything left for her parents Or her heirs. And another calculation will convince you, if you will make it, that if you desire to give a party $100 a year for, Say, 11 years, We should give her $1,000, because if you will make that calculation, and I went to a little trou- . ble to make it while the attorneys were arguing the Case, you Will find that, COunting the interest, $1,000 will produce about $100 for the 11 years. To illustrate the thought: The first year there would be the $1,000 and $60 interest; that would make $1,060. Then subtract that $100 from the $1,000, you will have left as principal $960; then the interest on that for the next year Will be $55.70, making $1,011.70, and if you will follow that same principle out you will find that $1,000 invested, the interest used as an annuity as given, it will exhaust itself in the course of Some 12 years. I have not made the Calculation exactly, but it is about 12 years that it will exhaust itself.”

Verdict and judgment for plaintiff for $3,687. Defendant appealed.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, J.J.

Thomas H. Greevy and E. G. Brotherlin, for appellant. A. V. Dively, for appellee.

MESTREZAT, J. We have examined this case with care, and, notwithstanding the 32 assignments of error filed by the appellant, We discover no reversible error in the record. Eighteen of the assignments allege error in the answers to appellant's request for instructions to the jury. These points were properly refused, because they assumed as facts matters in dispute, or asked for bind

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iiig instructions. Three assignments complained, Without cause, of the learned judge's charge, which was more favorable to the appellant COImpany than the factS Warranted. Nine of the assignments allege error in the Court's answers to appellee's requests for inStructions to the jury; one of them complaining that the Court refused appellee’s ninth point. Of the other two assignments, one alleges error in not withdrawing a juror, and the other in not entering judgment for the defendant non obstante weredicto. . [1] The case was properly submitted to the jury in a charge of which the appellee had more reaSon to Complain than the appellant. There was ample evidence to Warrant the jury in finding that the motorman was negligent. The abrupt turn of the track as it entered Tenth Street from Lincoln Street required the motorman to keep a careful Watch along the track in front of him, and to announce With the gong his approach to the CrOSSing Where the accident occurred. From the crossing, the view of an approaching car on Lincoln Street is obstructed by buildingS, and the Only notice Of the approach of the car is the noise it creates, or the signal given by the motorman. The driver of the Wagon and his father both testified that they listened, but heard no gong. Several other witnesses testified that they were in a position to hear, and that the gong Was not Sounded. In addition to this failure of duty On the part Of the motorman, there was testimony which justified the jury in finding that at the time the car was turning on the curve into Tenth street the motorman was looking directly across that street, instead of along the track which was to his left; that passengers On the Car Saw the team before he did; and that he Was not aware that the team was crossing until the Conductor rang the bell, at the Suggestion of a passenger on the rear platform, When it Was too late to avoid the Collision. The Verdict shows that the jury believed this testimony, and therefore the motorman Was properly convicted of negligence for which the defendant company was responsible. [2] The appellee was the guest Of her father, and the team Was driven by her brother, who was not her servant or under her control. Under these facts, negligence of the driver of the Wagon, if any, Cannot be imputed to the appellee. Jones V. Lehigh & New England R. R. Co., 202 Pa. 81, 51 Atl. 590; Little v. Telegraph Co., 213 Pa. 229, 62 Atl. 848. [3] Whether the appellee exercised the care of a prudent person in permitting the driver to attempt the crossing under the circumStanceS Was for the jury, and not for the Court. The test of the appellee's contributory negligence is, under our cases, whether she joined in testing a patent danger, or Violated a fixed rule of law. Her brother, as was clearly established by the testimony, had knowledge of horses from his earliest years, and Was a careful and competent driver.

wALSH v. AITOONA & L. V. ELECTRIC RY. CO.

553 There is no testimony to ShoW that the horses were unruly, or were not gentle. The CrOSSing WaS not in itself dangerous, and WaS Only made S0 by the approach 0f an unexpected or unheralded car, running not oftener than every 20 minutes. This fact did not prohibit the public from using it, or render a party guilty per se of negligence in attempting to use it. It is equally true that the public used the right-hand Side of the . Street When traveling in that direction, and the driver testifies that, on the occasion of the accident, he had to use the right Side of the Street, because there Was a Wagón On the other side approaching from the opposite direction, and he turned to cross the Street car track aS SOOn aS the Wagon had paSSed. With proper care on the part of the driver and motorman, a team could pass the crossing With perfect Safety. There was testimony to Warrant the finding that the driver and his father looked and listened before Starting acroSS. The testimony did not Show that the car was visible to or heard by the appellee, Or any other occupant of the Wagon, when the crossing was attempted. There WaS no Obvious Or imminent danger in a paSsenger permitting a capable driver to make the crossing; and hence whether the circumStanceS under Which the accident OCCurred required the appellee to act differently from What she did, and whether she was negligent in permitting the driver of the vehicle to attempt the CrOSSing, Were questions for the jury. In Carr V. Easton City, 142 Pa. 139, 21 Atl. 822, the guest of the driver and OWner of a Sleigh brought an action to recover damages for injuries sustained by being thrown from the vehicle. The following remark in the Opinion, With appropriate changeS as to the driver and vehicle, is applicable here: “She was a woman, not shown to have any Special knowledge of driving or horses Or Sleighs, Who had trusted herself to the guidance of her brother-in-law and his friend; and We Cannot Say, as matter of law, that the danger WaS SO apparent or so serious that She was called upon to exercise her own judgment in opposition to theirs. All these matters are for the jury to decide, upon their View of reaSOnable care and prudent conduct, under the circumstances shown by the evidence.” [4] Whether the appellee was guilty of negligence in leaping from the wagon under the circumstances was likewise for the jury. She certainly had reason to believe that a collision between the car and wagon was imminent, and that it might result in serious Consequences to her. While the appellant Company COntends, and its testimony Supports the contention, that the car did not strike the wagon, there was evidence on the part of the appellee which, if believed, Warranted the conclusion that there was a collision. If the appellee, without her fault, was placed in danger of a collision between the wagon and the car by the negligence of the defend

ant company, and she had a well-grounded fear that the Collision WOuld result in Serious injury to her, she, if acting in good faith and as a person of ordinary prudence, Was not guilty of negligence in leaping from the wagon to escape the threatened danger, although it was not the safest or wisest course to pursue. Whether the facts existed which warranted her in attempting to thus avert the threatened danger was for the jury, under the evidence Submitted.

[5] We are not convinced that the errorS complained of in the second and tenth assignments did the defendant any harm. The amount of the Verdict shows that the appellant was not injured by the illustration given by the learned judge in his charge as to the proper manner of estimating the damageS. We do not approve of the language used by him in Submitting the case on the question of damages, and complained of in the Second assignment; but it is apparent that it worked no injury to the appellant in this case, and therefore the assignment is not Sustained.

The judgment is affirmed.

(232 Pa. 456) SMITH v. LEHIGH VALLEY R. C.O. (Supreme Court of Pennsylvania. July 6, 1911.)

1. ABATEMENT AND REVIVAL ($ 54*)—DEATH OF PARTY—SURVIVAL OF ACTION.—‘‘ACTIONS FOR WRONGS DONE TO THE PERSON.’’ A husband's action for loss of services of his wife through injuries not resulting in death is not for wrongs done to the person within Act Feb. 24, 1834 (P. L. 78) $ 28, giving to personal representatives the right to prosecute actions in which their decedent was a party plaintiff, except “actions for * * * wrongs done to the person”; the quoted phrase not being used to describe a type of action, but referring to actions for injuries to the person of the plaintiff decedent. [Ed. Note.—For other cases, see Abatement and Revival, Dec. Dig. § 54.*]

2. RAILROADS ($ 395*)—OPERATION-INJURIES

TO PERSONS NEAR TRACK – ISSUES AND

PROOF.

A statement of claim alleging that defend

ant's train of cars through the negligence of the defendant and its employés left the tracks on which it was being operated, and crashed into the home of plaintiff, causing her injuries, is supported by evidence that a defective condition of the tracks, which had existed long enough to put defendant on notice, caused a car to become derailed and run into the dwelling house occupied by plaintiff, producing the injuries of which she complained.

[Ed. Note.–For other cases, see Railroads, Dec. Dig. § 395.*]

3. APPEAL AND ERROR ($ 742*)-RECORDSTATEMENT OF CASE. Assignments of error complaining of instructions and rulings which are unrelated to, and in no way suggested by, the statement of £uestion involved, will be dismissed on appeal. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 300; Dec. Dig. § 742.*]

Appeal from Court of Common Pleas, LuZerne County.

Action of trespass by Mary Smith, administratrix of the estate of Anthony W. Smith, and in her own right, against the Lehigh Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Trespass by Mary Smith, administratrix of the estate of Anthony W. Smith, deceased, and Mary Smith in her own right, against the Lehigh Valley Railroad Company. When the action Was instituted, Anthony W. Smith, the husband of Mary Smith, was a plaintiff, but he died before trial, and his administratrix WaS SubStituted.

The statement of claim averred, inter alia, that on January 25, 1906, the defendant company WaS Operating a train. Of CarS On its railroad in the vicinity of the plaintiffs' home; “that the said train of cars, through the negligence and careleSSneSS Of the Said defendant and its employés, left the tracks of the said defendant company on which it was then and there being operated by the said defendant company and its employéS, and crashed into the said home, where the said plaintiff was then and there sitting with her baby in her lap. The impact and Shock of the said crashing train was so great that the said plaintiff was thrown thereby from the chair on which she was sitting Violently and With great force against another chair, and was severely injured.” Mary Smith claimed for physical injuries and for pain and Suffering, and her husband, Anthony W. Smith, for expenses incurred for medicine, medical and surgical attendance, and nursing to his wife, as Well as for loSS Of her earningS, Services, and companionship. Verdicts for Mary Smith, individually, $2,000; and for Mary Smith, administratrix, $500, and judgments entered thereon. The defendant has appealed.

Errors assigned were: (1) Refusal to enter judgment non obstante Veredicto. (2) Instruction to the jury: “In estimating the damages to be awarded the estate of her husband, the jury are to allow it for the expenses incurred by Anthony Smith in his lifetime in curing his wife and also for the loss of her Services to him as the husband Of Said Mary Smith as the natural result Of the accident complained of, and in considering the loss of services the jury may also estimate the loSS Of her COmpanionship caused him by her injuries up to the time of his death, to wit, August, 1909.” (3) Refusal of binding instructions for the defendant. (4) Refusal to instruct the jury that the failure of plaintiff to produce and read the testimony given by Anthony W. Smith at the former trial warranted them in presuming that it was damaging to her case, and instructing that, as either side might offer the

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testimony, the failure of the plaintiff SO to do would not warrant more than an inference that such testimony might be damaging. (5) Refusal to instruct if the jury believed that Mrs. Smith was up and about on the day that the accident happened and thereafter, With nothing apparently the matter with her, “their verdict should be for the defendant,” and instructing that, if they believed the testimony to that effect, it Would go to impeach the credibility of the plaintiff, and, if from such impeachment “you will disbelieve her entirely, your Verdict should be for the defendant.” (6) Refusal of defendant's request for charge: “The allegation of negligence in plaintiff'S Statement being that defendant ‘WaS Operating a train of cars, and that ‘the * * * train of cars through negligence and careleSSneSS Of the * * * defendant and itS employés left the track * * * on which it was then and there being operated by the defendant company and itS employéS, proof that the car left the track On account Of a defective condition of the defendant's roadbed does not Sustain the plaintiff’S allegation, and the Verdict must be for the defendant, unless the jury find that the derailment of the car WaS due to the defendant's negligence in the Operation Of the train of cars,” which was declined without reading. (7) Overruling defendant's objection to the admission of certain testimony. (8) SuStaining plaintiff's objection to defendant's offer of certain testimony.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, J.J.

J. B. Woodward, for appellant. John T. Lenahan, James McQuade, and James L. Lenahan, for appellee.

MOSCHZISKER, J. This is an action instituted by a wife and husband under section 1 of the act of May 8, 1895 (P. L. 54), to recover for personal injuries to the former and Consequential loSSes to the latter. Pending the action the husband died, and his wife was appointed administratrix of his estate. She continued the Suit and Obtained two verdicts, one for $2,000 in her own right, and the other for $500, as the personal representative of the estate of her deceased husband. Judgments were entered On both of these Verdicts, and the defendant has appealed.

The questions involved as printed in the appellant's paper book suggest but two points for Our consideration : The first is : “Does action brought by husband for negligent injury to wife not resulting in her death survive to his personal representatives?” To start with, “at common law, a cause of action by a husband to recover for perSonal injuries to his wife, and for loss of her services and for medical expenses resulting from such injuries, did not survive the death of

SMITH V. LEHIGH VALLEY R. CO.

555

either party.” 21 Ency. Of Plead. & Prac. 341. Generally speaking, a right of action to recover damages for injuries done to perSOn Or property did not Survive; but this rule was relaxed by the statute of 4 Edw. . III, c. 7, and its supplements, so that thereafter, in Certain instances, perSonal representatives had the same remedy as the decedent himself. While these old English Statutes Were declared to be in force in PennSylvania, and were given a liberal construction, still it was held that they had reference Only to Wrongs which had inured to the benefit Of the defendant Or increased the aSSetS Of his estate at the expense of the perSonal property of the plaintiff's decedent. Penrod V. Morrison, 2 Pen. & W. 126; Lattimore V. Simmons, 13 Serg. & R. 183. But the act of February 24, 1834 (P. L. 77), provided, by Section 26: “The executorS Or adminiStratorS of any person Who at the time of his decease was a party, plaintiff, * * * in any action * * * shall have full power, if the Cause Of action doth by law Survive to them, to become party thereto, and prosecute * * * such suit * * * to final judgment * * * as fully as such decedent might have done if he had lived. * * *” And, by section 28: “Executors or administrators shall have power to commence and prosecute all perSOnal actions Which the decedent whom they represent might have Commenced and prosecuted, except actions for Slander, for libels, and for Wrongs done to the person. * * *” [1] The words, “except actions for * * * Wrongs done to the perSon,” as used in this Statute, do not describe a type of action, but mean actions to recover for wrongs in the nature of physical injuries done to the perSOn Of the plaintiff decedent; and in interpreting this statute they have been so conStrued. Moe v. Smiley, 125 Pa. 136, 17 Atl. 228, 3 L. R. A. 341. At the time the Statute Was passed, a husband had the common-law right “to commence and prosecute” an action in tOrt to recoVer for the 10SS Of his “Wife's Society and Services, and for expenses incurred.” 21 Cyc. 1526, Donoghue v. Consol. Trac. Co., 201 Pa. 181, 50 Atl. 952. Since the effect Of the act of 1834, Supra, was to make all actions which a decedent had the right to COmmence and prosecute Survive to his perSOnal representatives, Other than those particularly excepted (Miller v. Wilson, 24 Pa. 114, 122), and Since the act did not exCept actions of this character, a husband's right to recover damages for the loss of the services of his wife survives his death. Before leaving this branch of the case, it may be Well to note that the phrase “Wrongs done to the person” in section 28 of the act of 1834, supra, and the phrase “injuries to the person” in section 18 of the act of April 15, 1851 (P. L. 674), are Similar in meaning (Moe v. Smiley, supra), and that we have uniformly treated the latter as signifying injuries to the perSon Of the plaintiff bringing

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the action (Birch v. Railway Co., 165 Pa. 339, 30 Atl. 826; Taylor's Estate, 179 Pa. 254, 36 Atl. 230; Maher v. Traction Co., 181 Pa. 617, 37 Atl. 571; Rodebaugh V. Traction . Co., 190 Pa. 358, 362, 42 Atl. 953; McCafferty v. Railroad Co., 193 Pa. 339, 44 Atl. 435, 74 Am. St. Rep. 690; Edwards V. Gimbel, 202 Pa. 30, 39, 51 Atl. 357), and not as designating a type of action arising in whatever way from injuries to the person. The two Sections referred to deal With a like Subject, and there is no reason why the similar phrases used in each should not be given a like limited meaning. But if they were to be given a broader signification, and held to embrace all actions growing out of injuries to the person, then the verdict recovered by the personal representatives of the deceased husband Would fall Within the remedial provision of Section 18 of the act of 1851, Supra. However, looking at the question for determination in the light of our decided cases, We are brought to the Conclusion that the phrases must be construed as before stated; that the act of 1834, Supra, saved the action of Anthony W. Smith from abating by his death, and that his suit could be “prosecuted” by his administratrix “as fully as such decedent might have done if he had lived.” [2] The Second question involved as stated by the appellant is, “Can plaintiff recover on proof of negligence not alleged in her Statement filed?” The defendant COnteln(1S that the testimony adduced was not sufficient to support the averment in the statement describing the occurrence which brought the injuries upon the plaintiff, Mary Smith. The testimony was sufficient, if believed, to justify the jury in finding that a defective condition of the defendant'S trackS, Which had existed for a sufficient length of time to put it on notice, caused one of its cars to become derailed and run into the frame dwelling house occupied by the plaintiff, thereby throwing Mrs. Smith to the floor, and producing the injuries of which she complained. Under these circumstances, we cannot say that the allegata and probata did not agree, or that there was not sufficient evidence to sustain the verdict, if the jury SaW fit to accept the testimony Of the plaintiff and her witnesses. [3] The first, second, third and sixth a SsignmentS Which cover all of the matters comprehended in or suggested by the statement of the questions involved, are overruled. The other assignments which Complain of instructions and rulings unrelated to these matters and in no way suggested by the statement of the question involved are dismissed. Willock V. Railroad Co., 229 Pa. 526, 79 Atl. 138. If the appellant desired the points covered by these latter assignments reviewed, it Would have been Sufficient, after stating the main questions for

determination, had counsel added a few Words to this effect, “Correctness of instructions as to the effect of nonproduction of certain testimony, and concerning the condition and conduct of plaintiff after accident; rulings on admission and rejection of testimony.” If those instructions and rulings were necessarily involved in or suggested by the principal questions stated, then this course would not be required, or desired. While we do not specifically pass upon the assignments in question, we will say that We are not COn Vinced that the court below fell into any reversible error. The judgment is affirmed.

(232 Pa. 511) NEWINGHAM V. J. C. BLAIR CO. (Supreme Court of Pennsylvania. July 6, 1911.)

1. NEGLIGENCE (§ 124*) - ACTION ADMISSI

BILITY OF EVIDENCE.

In an action for injuries to a tinner and

roofer while working in the employ of a contractor on defendant’s building from the giving way of a portion of a fire escape, where the defendant had instructed the workmen to go to the roof by a fire escape and not by elevator nor by stairway, evidence that plaintiff was inside the building after the direction to use the fire escape was given was properly excluded as irrelevant.

[Ed. Note.—For other cases, see Negligence, Dec. Dig. § 124.*]

2. NEGLIGENCE (§ 126*)—ACTIONs—ADMISSI

BILITY OF EVIDENCE.

In an action for injuries to an employé of

a contractor from the giving way of a fire escape on defendant’s building, evidence that defendant had notice and intended to give warning of the dangerous character of the fire escape was properly excluded as irrelevant and immaterial.

[Ed. Note.—For other cases, see Negligence, Dec. Dig. § 126.*]

3. APPEAL AND EPRoR ($ 215*) – PRESENTATION OF QUESTIONS IN TRIAL CouBT – INSTRUCTION. That testimony was misquoted by the trial judge in his charge cannot be complained of on appeal, where the court's attention was not brought to it before the jury retired. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1309–1314; Dec. Dig. § 215;* Trial, Cent. Dig. §§ 683–685.] 4. NEGLIGENCE (§ 65*)—CoNDITION OF PREMISEs—CARE IREQUIRED OF PIAINTIFF. The fact that the employé of a contractor of defendant's building used an elevator or stairway within the building at times. in disregard of orders of defendant, did not affect his right to rely on the fire escape which he was ordered to use being in a proper condition. [Ed. Note.—For other cases, see Negligence, Dec. Dig. § 65.*] 5. TRIAL (§ 260*)—INSTRUCTIONS. In an action for injuries from the giving way of a fire escape on defendant's building, the refusal of a charge that if the plaintiff jumped 31% feet from the top of the fire wall to the floor of the fire escape, and thus subjected it to an undue strain, he could not recover, was not error where the court instructed that it was for the jury to say whether plaintiff acted

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