71 Pa. Super. 554 | Pa. Super. Ct. | 1919
Opinion bt
The plaintiffs, Albert J. Hammaker and Ava M. Ham-maker, his wife, brought this action against the Township of Watts, to recover damages for the death of their nine-year-old daughter, Emma, who. was killed in an accident alleged to have been caused by the failure of the defendant to maintain one of its public roads in reasonably safe condition for public travel and properly protected by a guard rail. In the same accident, a seven-year-old daughter, Elda, was also killed, ánd a separate action was brought to recover the damages suffered by reason of her death. Both actions were tried together, and a verdict was rendered in each case for $27, the cost of the child’s burial. The facts as they a'ppear from the evidence and as established by the verdict are as follows:
The plaintiff, Albert J. Hammaker, was, on January 29, 1914, a day laborer, aged thirty-eight years, living in Watts Township, with his wife, who was a few years younger than himself, and three children, a boy twelve years old and the two little girls above mentioned. The girls were well and healthy, bright and intelligent, smart at school and beginning to be helpful at home, assisting their mother, who did her own work, in her household duties. About ten o’clock on the morning of that day, Mrs. Hammaker had occasion to go to her mother’s, who lived about two miles distant. She took her two daughters with her, intending to leave them with a friend who lived along the way. When she got to her friend’s house, she found that she was not at home, so she decided to send them to her sister’s, who lived half a mile distant. She went with the girls along the road as far as the top of the hill and started them on the way to her sister’s, telling them to come home by two or three o’clock. The children, on arriving at their aunt’s, found that she was
The learned trial judge left four questions of fact to be found by the jury: (1) Was the township negligent in not erecting a guard rail at this point? (2) Was the absence of such guard rail the proximate cause of the accident? (8) Was the team under the control of the driver? (4) Were the plaintiffs guilty of contributory negligence “in allowing their children to be at large?” The verdict of the jury in. favor of the plaintiffs established these questions of fact against the defendant. The charge of the court on the question of damages was in accordance with the well-established law of this State and is not assigned for' error.
The plaintiffs filed a motion for a new trial on the ground of the inadequacy of the verdict; but, before it was acted upon, the president judge of the court, before whom the case was tried, died. His successor, on November 18, 1918, refused the motion and directed judgment to be entered on the verdict, from which judgment this appeal was taken.
That this court has the power to review the discretionary act of the trial court in refusing to grant a new trial because of the inadequacy of the verdict is undoubted: Spence v. Stockdale Borough, 57 Pa. Superior Ct. 622. It is, however, always to be exercised with caution: Woodward v. Traction Co., 17 Pa. Superior Ct. 576; and only when the refusal of a new trial was a manifest abuse of judicial discretion, calling for. correction: Reno v. Shallenberger, 8 Pa. Superior Ct. 436; or when there is a clear conviction, compelled by the evidence, that the jury must have been influenced by partiality, passion or prejudice, or by some misconception of the law or the evidence: Palmer v. Publishing Co., 7 Pa. Superior Ct. 594. In Bradwell v. Railway Co., 139 Pa. 404, in the
The appellee claims that this principle cannot apply in a case for damages for death occasioned by negligence, because in such case the damages, apart from the expenses incident to the injury and death, are more or less conjectural: Hoon v. Beaver Valley Traction Co., 204 Pa. 369.
That the purpose of the rule was to restrain the jury from excessive verdicts in favor of the injured plaintiffs is apparent from an examination of the early cases which construed the acts: Penna. R. R. Co. v. Kelly, 31 Pa. 372. But, nevertheless, the defendant must be “held
While the damages according to the rule are to be only'compensatory, they are also to be reasonable; reasonable no less to the injured plaintiff than to the negligent defendant. In Penna. R. R. Co. v. Bantom, 54 Pa. 495, the plaintiff jvas a widow, whose son, between thirteen and fourteen years of age, was killed through the negligence of the defendant company. There was evidence that he had assisted the plaintiff in the milk delivery business in which she was engaged. The jury awarded a verdict of $1,748. The defendant appealed, claiming that the recovery should have been limited to damages for nursing and medical attendance. The court, referring to the Act of 1855, said: “Now, here is no limitation of damages to nursing and medical attendance. The legislature did not undertake to define the damages, and yet the power of a widowed mother to recover damages for the injury causing the death of her son is expressly given. What damages? Such as a court and jury, in view of all circumstances, should consider reasonable. If this was not what the legislature meant, their meaning is past finding out.”
The law very properly regards human life as having pecuniary value to those injured by its untimely ending through the negligence of others, and is not too exacting in measuring the standard of such value. Thus, in North Penna. Railroad Co. v. Robinson, 44 Pa. 175, a man seventy-five years old was killed through the negligence of the defendant, leaving four children, the plaintiffs, only one of whom lived with, or was dependent on, him. He left an estate of a rental value of $800 per year, which was divided among his children. In answer to the contention that, if but one suffered any pecuniary damage, the defendant was entitled to a verdict, the Supreme Court said: “If we are careful to remember that the value of life lost, to be estimated by a pecuniary
In D., L. & W. R. R. Co. v. Jones, 128 Pa. 308, the plaintiff’s wife, a woman sixty-six years old, was killed by the defendant’s negligence. The defendant submitted a point that, as the evidence of the plaintiff failed to show that he had suffered pecuniary loss by the death of his wife, there was nothing in the case to warrant the jury in finding that he had suffered substantial damages, and that the verdict could not be for more than a nominal sum. The court, Rice, P. J., refused the point, and the Supreme Court affirmed, saying: “Evidence was introduced by plaintiff below to prove that the deceased, Mrs. Jones, was his wife; that she was sixty-six years of age, and had always been a healthy woman, etc. Presuming that in the absence of any rebutting evidence, the jury might and doubtless would infer that she was an ordinarily industrious and useful wife, capable of discharging properly the duties of her position, and that consequently her death was a pecuniary loss to him, plaintiff below did not undertake to prove that she possessed any specially or exceptionally good qualities, as with propriety he might have done if the subject of his loss had been a horse or other animal. Nor was it either necessary or proper that he should do so. The court was clearly right in refusing to charge as requested:” On the same principle, an infant, too young to have any earning power at the time he is injured, may be allowed by the jury compensation for the loss, of earning power after he arrives at age, if his injuries are permanent: Fedorawicz v. Citizens’ E. I. Co., 246 Pa. 141; and the parents of a six-year-old child may recover for his probable earnings until twenty-one years old: Hoon v. Traction Co., 204 Pa. 369; Cosgrove v. Hay, 54 Pa. Superior Ct. 175. In such case, all that the parents can show is the age and the physical and mental conditions of the child and their own circumstances in life: Hoon v. Traction Co., supra. In McCleary v. Rail
It is not necessary to hold that there must be substantial damages allowed for the negligent death of a child in every case and under all circumstances. There may possibly be exceptional circumstances which may justify a jury in holding that parents are not entitled to more than nominal damages from a defendant who has killed their child through negligence or carelessness. But those exceptional circumstances do not exist in this case. The child, when killed, was healthy, bright and intelligent, and was beginning to be useful in helping her mother, and the parents were poor people, compelled to make use of the services of their children earlier than their more well-to-do neighbors. The verdict of the jury established the culpable negligence of the defendant and that such negligence was the proximate cause of the child’s death. The jury having so found, with the evidence of the child’s age, good health, bright mental condition and helpful disposition before it, a verdict fixing the pecuniary value of the child’s life at the amount expended for its burial is so unreasonable and disproportionate to the value of human life, that we are convinced that it must have been influenced by partiality or prejudice, or by some misconception of the law or the evidence in the case, and in our opinion, the learned judge of the court below erred in the exercise of his judicial discretion in refusing a new trial.
The second assignment of error is sustained, the judgment is reversed, and a venire facias de novo is awarded.