Braithwaite v. Hall

168 Mass. 38 | Mass. | 1897

Holmes, J.

The demurrer must be overruled. The meaning of the declaration is plain and sufficient. Nowadays we do not require pleadings to be guarded against all the possible distortions of perverse ingenuity. The single collision which caused the damage to the plaintiff’s person and to his bicycle was one cause of action. “ Un trespasse ne serra mye deux foitz puny.” Y. B. 5 Ed. II. 134, 135. Doran v. Cohen, 147 Mass. 342, 344. Bliss v. New York Central & Hudson River Railroad, 160 Mass. 447, 455.

The ruling as to damages was correct. It is true that, when a man is allowed to prove his average earnings or the wages actually lost by him, they are proved as a measure of the value of the time and power to labor of which he has been deprived, not as themselves recoverable eo nomine. But the distinction does not appear to be material in this case. There is nothing to show that the wages were not reasonable, and a proper measure of the value of the plaintiff’s time. It is argued for the defendant, that the true measure is the market value of the average wages of a man of the plaintiff’s average capacity working in the same employment. But the eases cited do not sustain the position, and there are many decisions adopting the test of the individual’s experience. If any distinctions in- the value of men’s time are admitted there is no reason why the whole actual difference should not be recognized. To this extent a tortfeasor takes the risk of the value of what he destroys. Murdock v. New York & Boston Despatch Express Co. 167 Mass. 549, and cases cited. See also Lake Shore Michigan Southern Railway v. Frantz, 127 Penn. St. 297, 308.

Demurrer overruled; exceptions overruled.