83 Pa. Super. 257 | Pa. Super. Ct. | 1924
Argued April 24, 1924.
The plaintiff's action was trespass for damages arising from an injury received when a passenger in a car of the defendant. The front truck of the car was derailed while it was moving eastwardly in the City of New Castle. The car was subjected to a jolting movement as the forward truck ran over the ties and in that movement the plaintiff alleged his hand was caught at the end of the seat on which he was sitting and he was thrown forward from the seat. The accident occurred about half past three in the afternoon on the 24th of September, 1921. The injury having been received in the course of transportation and caused by one of the facilities of transportation, a presumption of negligence arose. This the defendant undertook to repel by testimony that stones had been placed on and beside the rails at the place where the front part of the car left the track; that these stones were not seen by the motorman because they were nearly the color of the ground on which they were placed; and that the company had no notice that they were there until the car went over them. On this state of facts the question of negligence was clearly one for the jury, especially in view of the evidence that the car could have been stopped according to the admission of the defendant's witness within seventy-five feet, and as it was not stopped until after it was partially off the track, it is apparent that the obstruction was not seen until the car was within that distance from it. As the sun was shining brightly on the track in plain view from the position of the motorman, *259
it would require very satisfactory evidence to induce the jury to believe that the motorman was giving attention to the condition of the rails about the time the accident occurred. In no aspect of the case could the court have assumed the credibility of the motorman as to his attention and thus have determined the question of responsibility without reference of that subject to the jury. The court very properly therefore refused to give binding instructions for the defendant and to enter judgment n.o.v. The plaintiff was a marble cutter and carver of marble. The evidence tended to show that the injury to his hand affected some of the nerves thereof in such a manner he could not hold the tools which he necessarily used in cutting inscriptions and in carving statuary. For the purpose of showing the character of the work he did and the manner in which it was done as bearing on the condition of his hand, exhibits A, B, and C were presented for the observation of the jury. These seem to have been marble figures which the plaintiff had carved, and in connection with these exhibits he testified he was no longer able to do such work because he could not hold his chisel in his hand. The objection to these exhibits was that it was not a competent method of proving the amount of damages, if any, to which the plaintiff was entitled, but this objection was not well taken. The obvious purpose of the offer was to make clear to the jury how it was that the plaintiff who had not lost his hand nor any part of it was still deprived of a use of it which was involved in the prosecution of such work as that by which he earned his livelihood, and for this purpose we think the exhibits were properly presented. The mallet and chisel used by the plaintiff were not offered in evidence and there is therefore no basis for the fourth assignment. Objection is made to the answers to the fifth and tenth points presented by the plaintiff. They relate to the measure of damages and are unobjectionable to the extent to which they go. They do not cover the whole subject and may be said to be inadequate with *260
respect to the capitalization of future earnings. It was held in Hockenbury v. Electric Co.,
The assignments are therefore dismissed and the judgment affirmed.
