Lead Opinion
Opinion by
The plaintiff was seriously injured in the course of his employment through the use of defective equipment, furnished his employer by a third party. He instituted this action for damages against the supplier of the equipment. The latter joined plaintiff’s employer as an additional defendant. At trial, the jury awarded plaintiff a substantial verdict against the original defendant. . The additional defendant was exonerated by the ".jury. Post trial, the court below directed a new trial between the plaintiff and the original defendant, limited to the question of damages. From this order, the plaintiff appeals. The original defendant appeals from the orders of the court denying judgment in its favor notwithstanding the verdict and refusing to direct that the additional defendant be a party to the second trial.
The plaintiff is a painter by trade and was directed by his employer, Harry Weber, the additional defendant, to assist in painting the interior of a church for which Weber had the contract. The scaffolding equipment was furnished and erected by the original defendant, Safeway Steel Scaffolds Company of Pittsburgh, a corporation.
The equipment consisted, in part, of towers extending into the air, approximately 37 feet from the floor. These were connected by walkways, consisting of two “picks” running from one tower to another. Each “pick” was 22 feet long, 1 foot wide, made of wood with slats as the walking surface, supported by rungs underneath which doweled into the side rails. Each side rail was reinforced with a steel rod running lengthwise.
The domed contour of the walls and ceiling of the church was such, that it was impossible to reach and paint every portion thereof from the deck or platform of the towers or the walking surface of the “picks.” The position of the congregational pews on the floor of the church rendered it impossible to move the towers.
In order to reach one of these difficult or inaccessible portions of the church interior, the plaintiff and a fellow employee moved a “pick” onto the deck of the tower and projected it out approximately 4 to 5 feet in the direction where the work had to be done. It was then securely tied down to the steel framework of the tower on the work side, while plaintiff’s fellow employee sat on the “pick” at the opposite side of the tower in order to hold the “pick” firm. At this juncture, the 22 foot “pick” projected out 4 or 5 feet on the side where plaintiff was working, with 7 feet of its length supported by the tower itself and with 10 feet
A subsequent examination disclosed that several of the “picks” furnished by the original defendant were in a very defective condition. The particular one causing plaintiff’s fall had been split some time before at the point of fracture involved herein, it being evident that a saw cut had run a half inch deep into the side rail at this point.
Judgment n.o.v.
The original defendant admits that the evidence is amply sufficient to support the finding by the jury that it was guilty of negligence. The only contention raised on appeal in favor of its motion for judgment non obstante veredicto is that, under the facts, the plaintiff was guilty of contributory negligence as a matter of law. With this position, we cannot agree. The question was for the jury.
Certain appropriate principles of law are fundamental: (1) That the jury winner is entitled to every fact and inference of fact which may reasonably be deduced from the evidence, Metro v. Long Transportation Co.,
In the instant action, the plaintiff had every reason to rely upon the fact that the original defendant had furnished equipment in good condition, which was reasonably safe for the purpose of performing the job to be done. The day of the accident was the very first occasion he had cause to use it. The lighting in the church furnished by chandeliers, which hung far below the heighth of the temporarily erected towers upon which the plaintiff was working, cast their light downward towards the floor. The fact that he did not see or observe the existing defect in the particular “pick” is readily understandable. To expect him to do so would be unreasonable.
It is argued that the particular use made by the plaintiff of the “pick,” which broke and caused the fall, constituted a dangerous adventure and that he voluntarily assumed the risk of the consequences that followed. The answer to this is that the particular use of the “pick” made by the plaintiff at the time of the accident was not unusual, but rather the customary and the usual practice followed by other such tradesmen in like situations. Several witnesses testified to this fact. Not one offered contradiction. This is what is known in the trade as a “thrustout.” The Department of Labor and Industry of the Commonwealth recognizes that such a practice is followed, as is indicated by a provision in relation thereto in its Regulations for Construction and Repairs. These regulations provide for the use of life belts and life lines where workmen “crawl out on thrustouts” or projecting beams. However, the evidence was unanimous in this
In determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered: Stringert v. Lastik Products Co., Inc.,
New Trial
In instructing the jury as to the claim for loss of impairment of future earning power, the court stated that in reducing this element of damage to its present worth, the jury was permitted to use a measure other than the prevailing legal rate of interest. In other words, the court allowed the jury to select its own rate of interest in calculating this sum. This instruction was influenced by a specific request on the part of plaintiff’s counsel. Unfortunately, these instructions are contrary to the rule enunciated by this Court in Windle v. Davis,
The lower court recognizing that the trial instructions in this respect were contrary to the rule of Windle v. Davis, supra, and further that the element of diminution of earning power constituted a major element in the case, held that this portion of the charge was erroneous and required a new trial. This was the sole reason stated for such action.
It is argued by the plaintiff that the rule enunciated in Windle v. Davis, supra, in view of economic conditions, is antiquated and unrealistic in modern times. We are all aware that present interest rates are different than as of the year this rule was first written. In fact, they presently vary from day to day, place to place, and under different conditions in the same area. There must be a fixed rule to aid juries in calculating the present worth of such elements of damage and to guide trial courts in aiding the jury in resolving such difficult questions. It is our conclusion that a change in the rule would lead only to confusion and chaos and add greater difficulty in the trial of such cases. The rule is, therefore, reaffirmed.
The orders of the lower court are affirmed.
Emphasis supplied.
Dissenting Opinion
Dissenting Opinion by
The plaintiff in this case sustained frightful injuries. Although he still bears the form of man, he has been deprived of much of what makes a man: unimpaired mobility, normal vision, cerebral integrity, nerve wholeness, auditory soundness. His earning power has been permanently destroyed. He is deformed and awkward. He can no longer romp with his children.
The jury returned a verdict in his favor in the sum of $210,675, a modest figure when one sees Francis Gregorius, as he is today, and as he must have been before the fateful accident which caused him to plunge from a scaffolding where he was painting the ceiling of a church down to the sharply penetrating backs of pews 37 feet beneath.
The trial court ordered a new trial not because of any doubt as to the extent of his injuries or that per se the verdict was excessive. It ordered a new trial because in charging the jury it said that the jury should reduce the present worth of whatever amount was allowable for reduction in earning power by the rate of interest currently obtainable. The court declared this instruction was in error, citing Windle v. Davis,
Everyone knows that obtaining a return of 6% on one’s money today is like growing watermelons in the Sahara. It is possible but highly unlikely, without the aid of experts whose cost could drain away the profit, making the venture a wholly dessicated investment.
If law is to be a living, breathing vital force, responding to the needs and conditions of the present, as it is eulogized at all bar association dinners and festivities, it cannot be predicated on decisions which no longer represent reality. To require a jury to reduce by 6°/o the amount to which the plaintiff in this case is entitled is to take away from him a sizeable portion of his verdict because he could not, without the financial skill, which the record in no way attributes to him, obtain 6% on what he is entitled to in this lawsuit.
'When this Court said in 1922 that 6% was the lawful rate of interest, it did not say that 6% was and would for all time remain the routine, usual interest. Twenty years after the Windle decision this Court held that a 6% yield on an investment was not only not usual but that to depend on 6% constituted shaky financing. We said in Kenin’s Trust Estate,
To compel the plaintiff here to look for investments bringing a 6% return on what the jury awards him for loss of future wages is to ask him to attach skates to his disabled feet and, on wobbly legs, strike out over thin ice to seek a solid island of guaranteed returns while moving over a constantly cracldng surface beneath him. The tortfeasor in this case already caused him to fall once, the Court should not force him into a situation where he may fall again — this time into a hole in the ice where he may lose all that an appreciative and fair-minded jury gave him for the necessities and slight comforts of a life which must from now on be clouded with unhappiness, at its best.
The lawful rate of 6% interest in Pennsylvania was established to protect people inexperienced in the ways of the world from the wolves of finance who might inveigle the unwary into the jaws of usurious destruction. The law never proclaimed that once money was
The majority opinion does not attempt to rationalize the application of the 6% rule. It merely says that it was established by the case of Windle v. Davis, supra, and it must be followed. I refuse to accept Windle v. Davis, supra, as representing the last word in wisdom, or even the first word in fairness. While I believe in adherence to the principle of stare decisis, I see no wisdom or even good sense in following a rule which is palpably incorrect and clearly works injustice. The road sign which points straight ahead when straight ahead leads to an unrailed precipice should be ignored, and either the sign should be changed or the road rerouted to avoid the precipice.
The decision of this Court puts up a road sign which (j regorius could well ignore because if he indiscriminately invests his verdict at a presumed 6% he takes a chance of going over the precipice which will smash his investments to a greater degree than the fall in the church smashed his body.
The majority opinion says that “There must be a fixed rale to aid juries in calculating the present worth of such elements of damage and to guide trial courts in aiding the jury in resolving such difficult questions.”
This may or may not be true, but there certainly is no principle of law which says that a fixed rule should embody something which is unreal. To speak of a 6% return on the average investment of today is to dwell in a land of unreality, day-dreaming and vain hope.
The majority opinion says that a “change in the rule would lead only to confusion and chaos and add greater difficulty in the trial of such cases.”
The majority opinion, following Windle, speaks of 6% as the lawful rate of interest. In many ways it is really unlawful. No bank insured under the Federal Reserve System is authorized to pay more than 3% interest, compounded quarterly. No savings bank, whether insured under the Federal Reserve System or not, may pay depositors over 5% interest in Pennsylvania. The Treasurer of the United States is not allowed to pay above 3.26%, compounded semi-annually on United States Savings Banks, unless the President, for national reasons, raises the rate and even then, he may not increase it above 4.25%.
Even the Restatement of Torts contradicts the majority opinion. It says under comment d, Section 924: “In ascertaining the present worth of the future loss of earnings, that is, in discounting the recovery because future losses are paid for in advance, the rate of discount is based upon the current return upon long-term investments if the prospective losses are long continued.”
Former Chief Justice Horace Stern commented cogently on this subject in his dissenting opinion in Murray v. Phila. Trans. Co.,
Other members of this Court have manifested dissatisfaction with the 6% rule which the majority affirms. In Sherman v. Manufacturers Light & Heat Co.,
“I regard it as unfair, unjust, and inequitable to take from an injured man’s verdict an amount equivalent to 6% when at most he might get only a return of 2 or 3% on his investment. Imposing the rate of interest laid down in the Windle case means actually taking from the injured man’s pocket at least 8% of the amount the law has awarded him. This 3% is not a tax which goes to the government, it is not charity payable to a hospital, it represents an amount of money turned over to the defendant — the very person who has injured the plaintiff, crippled him, and inflicted on him pain, suffering, and agony. If this is justice, it has indeed taken a strange and enigmatic form.
“This Court had the opportunity in this case, which it entirely ignored, to definitely declare what the law should be today on the matter of deductible interest in personal injury damage cases. I submit that this Court should have announced that whatever amount the jury is to award the plaintiff for prospective loss of future earnings should be translated into that amount which when invested at the prevailing rate of interest (which is certainly not 6%), would equal at the end the total accumulation of all future losses resulting from impairment or complete destruction of earning power.”
The Supreme Court of the United States does not go along with the fantasy that a 6% return is inevitable on investments. In Chesapeake & Ohio Ry. Co. v. Kelly,
Other courts in the United States tread the solid ground of reality and do not assume to be true what common experience establishes to be untrue. The Supreme Court of Florida said in Renuart Lumber Yards v. Levine (Fla.),
In Thoirs v. Pounsford,
The Supreme Court of Iowa said in Von Tersch, v. Ahrendsen,
The Supreme Court of Washington in Kellerher v. Porter,
The Supreme Court of New Hampshire said, in the case of Adams v. Severance,
In the face of the logic, justice, and fairness embodied in these decisions; in view of what cannot be denied, namely, that 6% interest is not the prevalent rate of interest; in a just appraisement of fact and not theory, reality and not abstraction, it is incomprehensible to me how the majority can do so unjust a thing as to require the plaintiff in this case to surrender up much of what was properly awarded him by the jury and which, considering the nature of his terrible injuries, is really a modest sum. I thus dissent to that part of the majority’s decision which orders this Avholly unnecessary new trial. I concur in that part of the majority opinion which states that the question of contributory negligence was properly decided by the jury and that the additional defendant was Avithout fault.