264 Pa. 467 | Pa. | 1919
Opinion bt
The facts presented by this appeal are substantially the same as those contained in the appeal of Milligan y. Phila. & Reading Ry. Co., 261 Pa. 344. Baxter, husband of the present appellee, was killed at Island Road crossing, Philadelphia, by a collision between the appellant’s train and a runabout in which he and Milligan were riding. Milligan was driving. From a verdict in the wife’s favor this appeal was taken. The assignments of error, which complain of the refusal of the court below to direct a verdict for the defendant and to enter judgment on its motion n. o. v., are without merit.
An effort was made to show contributory negligence on the part of Baxter and his companion Milligan. Mr. Justice Walling, in the case of Milligan v. P. & R. Ry. Co., supra, discusses this question, and there is no evidence in the present case to change the conclusion there reached. Whether Baxter could see the train coming, had he looked, or whether it was too dark to see it, were questions for the jury to determine. Photographs were received in evidence showing a view of the grade crossing and the tracks on a clear day. While this might have been helpful, the inquiry was more directly concerned with the conditions existing on the ground on the day of the accident and the effect that the partial absence of
Baxter was a wagon builder and blacksmith; his only income was from that business. The machinery used in connection with the business consisted of a band saw, planer, drill press, emery wheel and smoothing iron; these were driven by an electric motor, the current for which was purchased. Baxter, the decedent, worked in the shop like any other employee, and also acted as a superintendent in connection with the general work. He had the assistance of his minor son and four or five employees. The larger part of the business was repair work. While some new wagons were constructed, they were sold as rapidly as built. There was on hand, at the time of Baxter’s death, material valued at $2,200, ■ and his plant equipment did not represent an investment above that figure. Out of the income he gave to Ms wife approximately $1,800 yearly for the support of his family. Evidence of the foregoing facts was offered for the purpose of measuring his earning power and, as such, was objected to for the reason that it did not properly show personal earnings as distinguished from the profits of the business. In the latter was included the return from a small amount of capital invested and the toil of others which, with the deceased’s earnings, less certain deductions for expenses made up the net profits of the plant. It was from this sum the wife was given her allowance for maintenance.
In'all of the cases where earning power may be measured in part by profits, it cannot be done with the certainty that a daily or monthly wage is fixed, either in connection with the business directly under consideration or apart from and attached to another business. The yearly value of the services of one who owns, manages and labors with others, with invested capital, is subject to many conditions which do not confront us in the ascertainment of the earning power when we consider a monthly wage, or the earnings of professional men, or men engaged in similar occupations. The owner of a business encounters the continued financial requirements of his undertaking; the effect of business depression, with its attendant loss, the destroying influence of competition, labor conditions, market supply, prícés, and loss through ordinary business attention, such as loss through unwise contracts, unused supplies or materials, etc., these
With these matters in view, the question must then be put: Would the business, if no accident 'had occurred, have the same measure of success as it always had; and would that success continue during the remaining period of the probable life of the owner ? If the answer is in the affirmative, then there is no loss on that account; but, if in the negative, then, since the personal equation is concerned, these uncertain factors will not be sufficient to deprive the claimant of the right to fair compensation for the loss of earning power, where the latter can be fairly and approximately measured.
The deceased was engaged in the repair business and occasionally in the manufacture and sale of a commodity. From this business he made a profit which was not subject to the hazard of a strictly contract price, with its accompanying liability to errors of judgment, fluctuations of cost, etc. This fair, average return, or profit, was practically the same for several years before the accident, under varying conditions. It was made up, first, from the intellectual and physical labor of the individual as owner and manager; second, the uncertain return from the use of machinery and profits on materials sold, or the net return from invested capital; third, the net earnings from the labor of others. Was the business then of such character that it could be said the earnings were so mixed that it could not be determined what his services were worth to the conduct of the business that he was engaged in; or, in other words, the earning power of the deceased could not be fairly ascertained?
We have intimated that the right of the injured party to be compensated for loss of earning power is a substantial one, and some reasonable and trustworthy test must be adopted else he will be wholly deprived of the value of this important element of damage. It was not due to the deceased’s act that such test has been made necessary; but, nevertheless, it would be wrong to set up a standard
While the evidence to show this pecuniary loss, or the effect of the absence of the personal attention, need not be clear and indubitable, it should not be a mere guess or a paper loss; it should be shown to exist as an actual loss. It must necessarily be the subject of substantive proof, and this evidence should be subject to criticism
In the case now under consideration, the deceased contributed approximately $1,800 a year, for some years prior to his death, to the support and maintenance of his family; this did not represent the total amount of earnings that had been set aside as profits, for, out of the profits, he paid the installments due on the building used in connection with this business and for his home. The evidence gives a detailed description of the character of the business and of the services performed by the deceased and his employees. Statements from which might be found the gross volume of business and gross expenses as they relate to the standard for measuring the earning power here claimed, the per cent of the whole fund as profit, and the part set aside from that per cent for some years prior to the deceased’s death. The yearly pecuniary loss claimed was confined to this $1,800 per year, or the amount set aside from profits regularly contributed toward the support of Ms family. Considering the capital invested, the labor employed, the character of the services performed by deceased, and the earning realized
We do not wish to be understood as holding that sums given for the support of the family are evidence of earning power, but where a sum of money, claimed as a yearly value of earning power, is derived from a business from which the claimant has his sole source of income, and this sum represents a part of the net earnings which Avere produced through the claimant’s personal direction and superintendency, and such sum is not beyond what his services would be worth if he were employed by another in like capacity in the same business, the amount so claimed would furnish some evidence which the jury might consider in fixing the value of earning power. That, in point of fact, this sum was given to deceased’s family for support is not material; for the evidence as to what was done with the money was not specifically objected to on any such ground.
The fact that his son contributed to the business, in a small way, and was not paid a salary or wage, does not affect the situation. His father supported him and he was entitled to his services during minority; but this, as we have endeavored to show, like the services of others, is not included in his earning power. We do not think the court erred in admitting evidence, or in its charge to the jury.
The third and ninth points, as presented, assumed, as undisputed, evidence clearly in dispute, as we have already pointed out. In fact the case hinged to a great extent on this evidence. The points could not have been unqualifiedly affirmed. If the time of day had permitted a photograph to be taken that would represent the conditions as they were at the time of the accident, this e-vidence might have been more persuasive. The court did
All the assignments are overruled and the judgment is affirmed.
See Dempsey v. Scranton, infra, 495.