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street car, where the evidence tends to show The court charged in part as follows: that plaintiff's brother was a careful and compe. "Possibly I would not take a thousand doltent driver, and that there was no imminent lars to endure toothache for a week, but, at danger in permitting a capable driver to cross the street car track, the question whether the the same time, if the dentist injured my occasion required plaintiff to act differently, tooth, so that I had toothache for a week, and whether she was negligent in permitting it would not be fair and right, unless he did the driver to attempt the crossing, are for the it willfully, to impose $1,000 damage on that jury.

[Ed. Note.-For other cases, see Street Rail dentist. Then she would be entitled, if the roads, Dec. Dig. $ 117.*]

injury was permanent, to damages for per4. STREET RAILROADS ($ 99*) — OPERATION - manent inconvenience and permanent pain

PERSONAL INJURIES–CONTRIBUTORY NEGLI- and suffering. If the testimony shows that GENCE.

she will endure pain and suffering for the Where plaintiff, without her fault, was placed in danger of a collision between the way injury, and if you come to this question of on in which she was riding and defendant's permanent injury, it would be your duty to street car by the negligence of defendant, and be conservative in the matter. To illustrate she had a well-grounded fear that the collision would result in serious injury to her, it was not my thought: Suppose that I was on the junegligence for her to leap from the wagon to ry, and I concluded that the plaintiff should escape the danger, though that was not the be entitled to $100 a year, the most natural wisest or safest course.

thought that would come to my mind would [Ed. Note. For other cases, see Street Rail: be that in order to give the plaintiff $100 a roads, Cent. Dig. SS 209-216 ; Dec. Dig. $ 99.*]

year I should render a verdict of $1,700, be5. APPEAL AND ERROR (S 1068*) - REVIEW HARMLESS ERROR_INSTRUCTIONS.

cause if you make a calculation you will Where the verdict shows that defendant in discover that $1,700, if invested, will produce a personal injury case was not injured by re- about $100 a year; but that is not the basis marks of the judge as to the measure of dam- to go on in determining the amount to be ages, such remarks constitute no ground for re- given for permanent injury, because this versing the judgment.

[Ed. Note. For other cases, see Appeal and lady will die some time, and then there is no Error, Cent. Dig. $8 4225-4228; Dec. Dig. s reason why there should be anything left 1068.*]

for her parents or her heirs. And another Appeal from Court of Common Pleas, make it, that if you desire to give a party

calculation will convince you, if you will Blair County.

Action by Mary A. Walsh against the Al- $100 a year for, say, 11 years, we should toona & Logan Valley Electric Railway Com- that calculation, and I went to a little troupany.

From a judgment for plaintiff, de- ble to make it while the attorneys were arfendant appeals. Affirmed.

guing the case, you will find that, counting Trespass to recover damages for personal the interest, $1,000 will produce about $100 injuries.

for the 11 years. To illustrate the thought: On July 4, 1906, P. J. Walsh, a resident of The first year there would be the $1,000 and Tyrone, Blair county, with his family, con- $60 interest; that would make $1,060. Then sisting of himself, his wife, four sons, and subtract that $100 from the $1,060, you will four daughters, spent the day driving in a have left as principal $960; then the interwagon containing four seats, and drawn by est on that for the next year will be $55.70, two horses. The front seat was occupied by making $1,011.70, and if you will follow that the father, a little daughter, and a son, same principle out you will find that $1,000 aged 1542 years, who was driving. The sec- invested, the interest used as an annuity as ond seat was occupied by the mother and given, it will exhaust itself in the course of another daughter. The third seat was occu- some 12 years. I have not made the calcupied by the plaintiff, aged 23 years, her lation exactly, but it is about 12 years that brother, aged 23, and a sister, aged 11. The it will exhaust itself.” fourth seat was occupied by two brothers. Verdict and judgment for plaintiff for $3,They spent the day in the country, and upon 687. Defendant appealed. returning home in the evening, between 7

Argued before BROWN, VESTREZAT, and 8 o'clock, crossed Washington avenue, POTTER, ELKIN, and MOSCHZISKER, JJ. in Tyrone, and drove up Tenth street parallel with the defendant company's car track

Thomas H. Greevy and E. G. Brotherlin, toward Lincoln avenue, which was just a for appellant. A. V. Dively, for appellee. square above, keeping on the right-hand side. The track makes a short curve at the cor MESTREZAT, J. We have examined this ner of Tenth street, and runs out Lincoln case with care, and, notwithstanding the 32 avenue to East Tyrone. When the team at- assignments of error filed by the appellant, tempted to cross this sharp curve, a car we discover no reversible error in the record. came around the corner. Whether the car Eighteen of the assignments allege error in struck the wagon, or stopped before getting the answers to appellant's request for into the wagon, was in dispute. Plaintiff, Mary structions to the jury. These points were A. Walsh, seeing the car coming, jumped properly refused, because they assumed as out of the wagon and injured, her ankle. facts matters in dispute, or asked for bind

.

Pa.)

WALSH v. ALTOONA & L. V. ELECTRIC RY. CO.

553

ing instructions. Three assignments complain- There is no testimony to show that the ed, without cause, of the learned judge's, horses were unruly, or were not gentle. The charge, which was more favorable to the ap- crossing was not in itself dangerous, and was pellant company than the facts warranted. only made so by the approach of an unexNine of the assignments allege error in the pected or unheralded car, running not oftencourt's answers to appellee's requests for in-er than every 20 minutes. This fact did not structions to the jury; one of them complain-prohibit the public from using it, or rening that the court refused appellee's ninth der a party guilty per se of negligence in atpoint. Of the other two assignments, one al- tempting to use it. It is equally true that leges error in not withdrawing a juror, and the public used the right-hand side of the the other in not entering judgment for the street when traveling in that direction, and defendant non obstante veredicto.

the driver testifies that, on the occasion of [1] The case was properly submitted to the accident, he had to use the right side of the jury in a charge of which the appellee the street, because there was a wagon on the had more reason to complain than the ap- other side approaching from the opposite dipellant. There was ample evidence to war-rection, and he turned to cross the street car rant the jury in finding that the motorman track as soon as the wagon had passed. was negligent. The abrupt turn of the track With proper care on the part of the driver as it entered Tenth street from Lincoln street and motorman, a team could pass the crossrequired the motorman to keep a careful

ing with perfect safety. There was testiwatch along the track in front of him, and mony to warrant the finding that the driver to announce with the gong his approach to and his father looked and listened before the crossing where the accident occurred. starting across. The testimony did not show From the crossing, the view of an approach that the car was visible to or heard by the ing car on Lincoln street is obstructed by appellee, or any other occupant of the wagon, buildings, and the only notice of the ap- when the crossing was attempted. There proach of the car is the noise it creates, or

was no obvious or imminent danger in a pasthe signal given by the motorman. The driv

of the wagon and his father both testified senger permitting a capable driver to make that they listened, but heard no gong. Sev

the crossing; and hence whether the circumeral other witnesses testified that they were quired the appellee to act differently from

stances under which the accident occurred rein a position to hear, and that the gong what she did, and whether she was negligent was not sounded. In addition to this failure of duty on the part of the motorman, in permitting the driver of the vehicle to atthere was testimony which justified the jury tempt the crossing, were questions for the in finding that at the time the car was turn

jury. In Carr v. Easton City, 142 Pa. 139, ing on the curve into Tenth street the motor- | 21 Atl. 822, the guest of the driver and ownman was looking directly across that street, er of a sleigh brought an action to recover

being instead of along the track which was to damages for injuries sustained by his left; that passengers on the car saw the thrown from the vehicle. The following reteam before he did; and that he was not mark in the opinion, with appropriate changaware that the team was crossing until the es as to the driver and vehicle, is applicable conductor rang the bell, at the suggestion of here: “She was a woman, not shown to have a passenger on the rear platform, when it any special knowledge of driving or horses was too late to avoid the collision. The ver or sleighs, who had trusted herself to the dict shows that the jury believed this tes guidance of her brother-in-law and his friend; timony, and therefore the motorman was and we cannot say, as matter of law, that properly convicted of negligence for which the danger was so apparent or so serious that the defendant company was responsible. she was called upon to exercise her own

[2] The appellee was the guest of her fa- judgment in opposition to theirs. All these ther, and the team was driven by her broth- matters are for the jury to decide, upon their er, who was not her servant or under her view of reasonable care and prudent conduct, control. Under these facts, negligence of under the circumstances shown by the evithe driver of the wagon, if any, cannot be dence.” imputed to the appellee. Jones y. Lehigh & [4] Whether the appellee was guilty of New England R. R. Co., 202 Pa. 81, 51 Atl. negligence in leaping from the wagon under 590; Little v. Telegraph Co., 213 Pa. 229, 62 the circumstances was likewise for the jury. Atl. 848.

She certainly had reason to believe that a [3] Whether the appellee exercised the care collision between the car and wagon was imof a prudent person in permitting the driver minent, and that it might result in serious to attempt the crossing under the circum- consequences to her. While the appellant stances was for the jury, and not for the company contends, and its testimony supports court. The test of the appellee's contributory the contențion, that the car did not strike negligence is, under our cases, whether she the wagon, there was evidence on the part joined in testing a patent danger, or violat- of the appellee which, if believed, warranted a fixed rule of law. Her brother, as was ed the conclusion that there was a collision. clearly established by the testimony, had If the appellee, without her fault, was placknowledge of horses from his earliest years, ed in danger of a collision between the wagon and was a careful and competent driver. and the car by the negligence of the defend

ant company, and she had a well-grounded Appeal from Court of Common Pleas, Lufear that the collision would result in serious zerne County. injury to ber, she, if acting in good faith Action of trespass by Mary Smith, adminand as a person of ordinary prudence, was istratrix of the estate of Anthony W. Smith, not guilty of negligence in leaping from the and in her own right, against the Lehigh wagon to escape the threatened danger, al- Valley Railroad Company. From a judg. though it was not the safest or wisest course ment for plaintiff, defendant appeals. A. to pursue. Whether the facts existed which firmed. warranted her in attempting to thus avert the threatened danger was for the jury, un

Trespass by Mary Smith, administratrix der the evidence submitted.

of the estate of Anthony W. Smith, deceased, [5] We are not convinced that the errors and Mary Smith in her own right, against complained of in the second and tenth as- the Lehigh Valley Railroad Company, . When signments did the defendant any harm. The the action was instituted, Anthony W. Smith, amount of the verdict shows that the appel- the husband of Mary Smith, was a plaintiff, lant was not injured by the illustration giv- but he died before trial, and his adminisen by the learned judge in his charge as to tratrix was substituted. the proper manner of estimating the dam

The statement of claim averred, inter alia, ages. We do not approve of the language that on January 25, 1906, the defendant comused by him in submitting the case on the pany was operating a train of cars on its question of damages, and complained of in railroad in the vicinity of the plaintiffs' home; the second assignment; but it is apparent “that the said train of cars, through the negthat it worked no injury to the appellant in ligence and carelessness of the said defendthis case, and therefore the assignment is not ant and its employés, left the tracks of the sustained.

said defendant company on which it was The judgment is affirmed,

then and there being operated by the said defendant company and its employés, and

crashed into the said home, where the said (232 Pa. 456)

plaintiff was then and there sitting with her SMITH v. LEHIGH VALLEY R. CO.

baby in her lap. The impact and shock of

the said crashing train was so great that the (Supreme Court of Pennsylvania. July 6, 1911.)

said plaintiff was thrown thereby from the 1. ABATEMENT AND Revival ($ 54*)—DEATH chair on which she was sitting violently and

OF PARTY-SURVIVAL OF ACTION="ACTIONS with great force against another chair, and FOR WRONGS DONE TO THE PERSON.”. was severely injured.” Mary Smith claimed

A husband's action for loss of services of for physical injuries and for pain and sufferhis wife through injuries not resulting in death is not for wrongs done to the person within ing, and her husband, Anthony W. Smith, for Act Feb. 24, 1834 (P. L. 78) $ 28, giving to expenses incurred for medicine, medical and personal representatives the right to prosecute surgical attendance, and nursing to his wife, actions in which their decedent was a party as well as for loss of her earnings, services, plaintiff, except "actions for * *

wrongs done to the person"; the quoted phrase not and companionship. Verdicts for Mary being used to describe a type of action, but re-Smith, individually, $2,000; and for Mary ferring to actions for injuries to the person of Smith, administratrix, $500, and judgments the plaintiff decedent.

entered thereon. The defendant has ap[Ed. Note.-For other cases, see Abatement and Revival, Dec. Dig. $ 54.*]

pealed.

Errors assigned were: (1) Refusal to enter 2. RAILROADS ($ 395*)-OPERATION-INJURIES TO PERSONS NEAR TRACK - ISSUES

TRACK – ISSUES AND judgment non obstante veredicto. (2) InstrucPROOF.

tion to the jury: “In estimating the damA ant's train of cars through the negligence of ages to be awarded the estate of her husthe defendant and its employés left the tracks band, the jury are to allow it for the exon which it was being operated, and crashed penses incurred by Anthony Smith in his into the home of plaintiff, causing her injuries, lifetime in curing his wife and also for the is supported by evidence that a defective con- loss of her services to him as the husband of dition of the tracks, which had existed long enough to put defendant on notice, caused a car said Mary Smith as the natural result of to become derailed and run into the dwelling the accident complained of, and in considerhouse occupied by plaintiff, producing the in- ing the loss of services the jury may also juries of which she complained. [Ed. Note.-For other cases, see Railroads, ed him by her injuries up to the time of

estimate the loss of her companionship causDec. Dig. § 395.*]

his death, to wit, August, 1909.” (3) Refus3. APPEAL ERROB (8 742*)-RECORDSTATEMENT OF CASE.

al of binding instructions for the defendant. Assignments of error complaining of in- (4) Refusal to instruct the jury that the structions and rulings which are unrelated to, failure of plaintiff to produce and read the and in no way suggested by, the statement of testimony given by Anthony W. Smith at the the question involved, will be dismissed on appeal.

former trial warranted them in presuming [Ed. Ņote.-For other cases, see Appeal and that it was damaging to her case, and inError, Čent. Dig. $ 300; Dec. Dig. § 742.*] structing that, as either side might offer the

Pa.)

SMITH v. LEHIGH VALLEY R. CO.

555

*

*

testimony, the failure of the plaintiff so to either party." 21 Ency. of Plead. & Prac. do would not warrant more than an infer- 341. Generally speaking, a right of action ence that such testimony might be damag- to recover damages for injuries done to pering. (5) Refusal to instruct if the jury be son or property did not survive; but this lieved that Mrs. Smith was up and about on rule was relaxed by the statute of 4 Edw. . the day that the accident happened and III, c. 7, and its supplements, so that therethereafter, with nothing apparently the mat- after, in certain instances, personal repreter with her, "their verdict should be for sentatives had the same remedy as the dethe defendant,” and instructing that, if they cedent himself. While these old English believed the testimony to that effect, it statutes were declared to be in force in Pennwould go to impeach the credibility of the sylvania, and were given a liberal construcplaintiff, and, if from such impeachment tion, still it was held that they had reference “you will disbelieve her entirely, your ver- only to wrongs which had inured to the bendict should be for the defendant." (6) Re-efit of the defendant or increased the assets fusal of defendant's request for charge: of his estate at the expense of the person"The allegation of negligence in plaintiff's al property of the plaintiff's decedent. Penstatement being that defendant 'was operat- rod v. Morrison, 2 Pen. & W. 126; Lattimore ing a train of cars,' and that the

V. Simmons, 13 Serg. & R. 183. But the act train of cars through negligence and care- of February 24, 1834 (P. L. 77), provided, by lessness of the

defendant and its section 26: "The executors or administrators employés left the track on which of any person who at the time of his decease

* it was then and there being operated by the was a party, plaintiff,

in any acdefendant company and its employés,' proof

tion

shall have full power, if the that the car left the track on account of a cause of action doth by law survive to them, defective condition of the defendant's road-to become party thereto, and prosecute bed does not sustain the plaintiff's allega

such suit

to final judgtion, and the verdict must be for the de- ment

as fully as such decedent fendant, unless the jury find that the de- might have done if he had lived. railment of the car was due to the defend- | And, by section 28: "Executors or adminisant's negligence in the operation of the train trators shall have power to commence and of cars," which was declined without read- prosecute all personal actions which the deing. (7) Overruling defendant's objection to cedent whom they represent might have the admission of certain testimony. (8) Sus commenced and prosecuted, except actions taining plaintiff's objection to defendant's for slander, for libels, and for wrongs done offer of certain testimony.

to the person. Argued before FELL, C. J., and MESTRE [1] The words, "except actions for ZAT, POTTER, ELKIN, and MOSCHZIS- wrongs done to the person,” as used in this KER, JJ.

statute, do not describe a type of action, but

mean actions to recover for wrongs in the J. B. Woodward, for appellant. John T. nature of physical injuries done, to the perLenahan, James McQuade, and James L. son of the plaintiff decedent; and in interLenahan, for appellee.

preting this statute they have been so con

strued. Moe v. Smiley, 125 Pa. 136, 17 Atl. MOSCHZISKER, J. This is an action in- 228, 3 L. R. A. 341. At the time the statute stituted by a wife and husband under sec- was passed, a husband had the common-law tion 1 of the act of May 8, 1895 (P. L. 54), right "to commence and prosecute" an acto recover for personal injuries to the for- tion in tort to recover for the loss of his mer and consequential losses to the latter. "wife's society and services, and for expenses Pending the action the husband died, and incurred.” 21 Cyc. 1526; Donoghue v. Conhis wife was appointed administratrix of his sol. Trac. Co., 201 Pa. 181, 50 Atl. 952. Since estate. She continued the suit and obtained the effect of the act of 1834, supra, was to two verdicts, one for $2,000 in her own make all actions which a decedent had the right, and the other for $500, as the person- right to commence and prosecute survive to al representative of the estate of her deceas- his personal representatives, other than those ed husband. Judgments were entered on particularly excepted (Miller v. Wilson, 24 both of these verdicts, and the defendant Pa. 114, 122), and since the act did not exhas appealed.

cept actions of this character, a husband's The questions involved as printed in the right to recover damages for the loss of the appellant's paper book suggest but two points services of his wife survives his death. for our consideration: The first is: “Does

Before leaving this branch of the case, it action brought by husband for negligent in- may be well to note that the phrase "wrongs jury to wife not resulting in her death sur- done to the person” in section 28 of the act vive to his personal representatives?" To of 1834, supra, and the phrase “injuries to start with, “at common law, a cause of ac- the person” in section 18 of the act of April tion by a husband to recover for personal 15, 1851 (P. L. 674), are similar in meaning injuries to his wife, and for loss of her serv- (Moe v. Smiley, supra), and that we have ices and for medical expenses resulting from uniformly treated the latter as signifying insuch injuries, did not survive the death of juries to the person of the plaintiff bringing

*»

the action (Birch v. Railway Co., 165 Pa., determination, had counsel added a few 339, 30 Atl. 826; Taylor's Estate, 179 Pa. words to this effect, “Correctness of instruc254, 36 Atl. 230; Maher v. Traction Co., 181 tions as to the effect of nonproduction of Pa. 617, 37 Atl. 571; Rodebaugh v. Traction certain testimony, and concerning the con· Co., 190 Pa. 358, 362, 42 Atl. 953; McCafferty dition and conduct of plaintiff after acciv. Railroad Co., 193 Pa. 339, 44 Atl. 435, 74 dent; rulings on admission and rejection of Am. St. Rep. 690; Edwards v. Gimbel, 202 testimony.” If those instructions and rulPa. 30, 39, 51 Atl. 357), and not as desig- ings were necessarily involved in or sug. nating a type of action arising in whatever gested by the principal questions stated, then way from injuries to the person. The two this course would not be required, or desired. sections referred to deal with a like subject. While we do not specifically pass upon the and there is no reason why the similar assignments in question, we will say that phrases used in each should not be given ? we are not convinced that the court below like limited meaning. But if they were to fell into any reversible error. be given a broader signification, and held The judgment is affirmed. to embrace all actions growing out of injuries to the person, then the verdict recovered by the personal representatives of the de

(232 Pa. 511) ceased husband would fall within the reme NEWINGHAM V. J. C. BLAIR CO. dial provision of section 18 of the act of (Supreme Court of Pennsylvania. July 6, 1851, supra. However, looking at the ques

1911.) tion for determination in the light of our 1. NEGLIGENCE (8 124*) - ACTION - ADMISSIdecided cases, we are brought to the con BILITY OF EVIDENCE. clusion that the phrases must be construed roofer while working in the employ of a con

In an action for injuries to a tinner and as before stated; that the act of 1934, supra, tractor on defendant's building from the giving saved the action of Anthony W. Smith from way of a portion of a fire escape, where the deabating by his death, and that his suit could fendant had instructed the workmen to go to be “prosecuted” by his administratrix was the roof by a fire escape and not by elevator nor

by stairway, evidence that plaintiff was inside fully as such decedent might have done if he the building after the direction to use the fire had lived."

escape was given was properly excluded as ir[2] The second question involved as stated relevant. by the appellant is, "Can plaintiff recover

[Ed. Note.-For other cases, see Negligence,

Dec. Dig. § 124.*] on proof of negligence not alleged in her statement filed?” The defendant contends

2. NEGLIGENCE (8 126*)-ACTIONS-ADMISSI

BILITY OF EVIDENCE. that the testimony adduced was not sufficient

In an action for injuries to an employé of to support the averment in the statement a contractor from the giving way of a fire describing the occurrence which brought the escape on defendant's building, evidence that deinjuries upon the plaintiff, Mary Smith. The fendant had notice and intended to give warn

ing of the dangerous character of the fire estestimony was sufficient, if believed, to jus-cape was properly excluded as irrelevant and tify the jury in finding that a defective iminaterial." condition of the defendant's tracks, which [Ed. Note.For other cases, see Negligence, had existed for a sufficient length of time Dec. Dig. § 126.*] to put it on notice, caused one of its cars 3. APPEAL AND EPROR ($ 215*) – PRESENTAto become derailed and run into the frame

TION OF QUESTIONS IN TRIAL COURT — IN

STRUCTION. dwelling house occupied by the plaintiff,

That testimony was misquoted by the trial thereby throwing Mrs. Smith to the floor, judge in his charge cannot be complained of on and producing the injuries of which she appeal, where the court's attention was not complained. Under these circumstances, we brought to it before the jury retired. cannot say that the allegata and probata did Error, Cent. Dig. $$ 1309-1314; Dec. Dig. $

[Ed. Note.---For other cases, see Appeal and not agree, or that there was not sufficient 215;*' Trial, Cent. Dig. $$ 683-685.] evidence to sustain the verdict, if the jury 4. NEGLIGENCE ($ 65*)—CONDITION OF PREMsaw fit to accept the testimony of the plain ISES-CARE REQUIRED OF PLAINTIFF. tiff and her witnesses.

The fact that the employé of a contractor [3] The first, second, third and sixth as- of defendant's building used an elevator or stair

way within the building at times. in disregard signments which cover all of the matters of orders of defendant, did not afect his right comprehended in or suggested by the state- to rely on the fire escape which he was ordered ment of the questions involved, are over- to use being in a proper condition. ruled. The other assignments which com

[Ed. Note. For other cases, see Negligence, plain of instructions and rulings unrelated Dec. Dig. $ 65.*] to these matters and in no way suggested 5. TRIAL ($ 260*)-INSTRUCTIONS.

In an action for injuries from the giving by the statement of the question involved way of a fire escape on defendant's building, the are dismissed. Willock v. Railroad Co., 229 refusal of a charge that if the plaintiff jumped Pa. 526, 79 Atl. 138. If the appellant desir- 314 feet from the top of the fire wall to the ed the points covered by these latter assign- floor of the fire escape, and thus subjected it ments reviewed, it would have been suffi- not error where the court instructed that it cient, after stating the main questions for was for the jury to say whether plaintiff acted

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