91 Pa. 185 | Pa. | 1879
delivered the opinion of the court,
The question of the measure of damages in cases arising under the Acts of 15th April 1851, Pamph. L. 674, and of the 26th April 1855, Pamph. L. 309, authorizing the widow and children of a decedent whose death has been caused by negligence, to recover from the person or persons whose negligence was the cause of such death, damages therefor, is not free from- difficulty. The plain object of the act was to provide a mode by which the family of one who has lost his life under such circumstances might recover a reasonable compensation for the pecuniary loss sustained. It was not intended to make families suddenly rich by the loss of their head nor to bring about an equal division of property-. In itself the act was right and proper, and if enforced in a spirit of impartial justice to all concerned cannot fail to prove highly beneficial.
It was early held that in such an action, exemplary damages could not be recovered, but that they must be compensatory only. See Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315, and Same v. Keller, 17 Id. 300. Nor can the damages be enhanced by any consideration of pain to the deceased or anguish to the survivors: Id. It is therefore a mere question of compensasion. What compensation may be recovered under such circumstances ? The Act of 4th April 1868, Pamph. L. 58, says such compensation only as the evidence shall clearly prove to have been pecuniarily suffered or sustained. I know of no more accurate rule for the measure of damages than the one laid down by the present chief justice in Pennsylvania Railroad Co. v. Butler, 7 P. F.' Smith 335: “ After an attentive examination and review of all the cases which have heretofore been decided, we are of opinion that the proper measure of damages is the pecuniary loss suffered by the parties entitled to the sum to be recovered without any solatium for distress of mind, and that loss is what the deceased would have probably earned by his intellectural or bodily labor in his business or profession during the residue of his lifetime and which would have gone for the benefit of his children, 'taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure.” Any rule that judicial research and experience may suggest must necessarily be more or less vague, and leave much to the sound discretion of the jury. The character of many of the verdicts rendered in such cases admonishes us that it would be unwise to enlarge the rule as above stated in Railroad Co. v. Butler.
In his answer to the plaintiffs’ fifth point the learned judge went beyond any of the cases cited. In the point referred to the court was asked to instruct the jury that “ the damages which may be allowed in this action may be summed up, as the pecuniary value of the life of John McEnery to his family, including wages and all such service as a father could render of pecuniary value to the wife
Error is also assigned to the refusal of the court below to affirm the defendant’s first point, which was as follows: “ The only duty the defendant company owed to John McEnery, deceased, was ordinary skill and care in the selection of employees to erect and construct the machinery and appliances used in connection with its bridge. The undisputed evidence in this case, showing that the bridge or trestle-work was built under the supervision and direction of Henry Willard, without the intervention of any officer of the company, and there being no evidence to show any want of care
The deceased having lost his life by the giving way of the defendants’ bridge, over which he was passing at the time with a mule team, it was a necessary part of the plaintiffs’ case to show that the bridge had not been properly constructed. The defence was that the defendants had exercised ordinary skill and care in the selection of employees to construct it. This defence is ample if made out. It was said in Ardesco Oil Co. v. Gilson, 13 P. F. Smith 146, that “ If a person employs mechanics or contractors in an independent business, and they are of good character, and there was no want of care in choosing them, he is not liable for injuries to others, from their negligence or want of skill.” To the same point are Painter v. Pittsburgh, 10 Wright 213, and Butler v. Hunter, 7 H. & N. 826. The principle is too familiar to need elaboration.
The defendants showed and it was not disputed, that they employed Henry Willard to construct this bridge, and that he was a carpenter and bridge-builder of experience. It is not enough for the plaintiffs to show that his work was unskilfully done or that he was incompetent. It must appear that the defendants were guilty of negligence in selecting him; that they either knew he was incompetent or with proper diligence might and ought to have known it. The law presumes they exercised ordinary care and skill in making the selection. The defendants are as much entitled to this presumption as the plaintiffs are to the presumption that the deceased exercised ordinary care in crossing the bridge. It will not do to have all the presumptions on one side. It follows that the burden of proof of showing that the defendants did not exercise ordinary care and skill'iti the employment of Mr. Willard, rests upon those who assert it. This principle is sustained by respectable authority. In Wonder v. The Baltimore and Ohio Railroad Co., 32 Md. 418, the Supreme Court of that state said: “ If, therefore, the defect in the brake that caused the injury, existed by reason of the neglect or want of care on the part df such employees of the defendant, the latter cannot be held liable, unless there has been negligence in the selection of those servants, and the onus of proof of such negligence is on the plaintiff.” In the Pittsburgh, Ft. Wayne and Chicago Railroad Co. v. Ruby, 38 Ind. 311, it was held that the plaintiff must show “that the defendant had not exercised ordinary care and prudence in the employment of such person.” The Supreme Court of Massachusetts and the Court of Errors and Appeals of New York have laid down a similar rule: Albro v. The Agawam Canal Co., 6 Cush. 77 ; Gilman v. Eastern Railroad Co., 10 Allen 239; Wright v. New York Central Railroad Co., 25 N. Y. 566. The same doctrine is recognised
There was no evidence that the. defendants did not exercise ordinary care and prudence in the selection of their bridge-builder. It was alleged, however, that Willard was only employed by the day, and that he was under the control of Robert Bell, the superintendent of the defendant company. It is of no consequence that Willard was employed by the day. The manner of his compensation does not affect the question under discussion. Willard says in his testimony that he had been a carpenter for twenty years and was experienced in bridge-building. He also says distinctly that he had control and supervision of the construction of the bridge in question. There is no substantial contradiction of this testimony. It is true one witness for the plaintiffs (Henry Kerb) does attempt to give a different version of it in his examination in chief, but practically took it all back in his cross-examination by admitting that Willard had charge of the construction of the bridge, and that Mr. Bell in no instance interfered with him or changed his plans. As superintendent of the company Bell paid the men, and consulted with them when necessary about the work. Had it been done under a special contract, it would have been his duty as superintendent to have done all that he did do in this case.
As therefore the defendant company owed no duty to the deceased except that of ordinary care in the selection of a builder to construct the bridge: as there is no substantial dispute that they did select Henry Willard for that purpose, and as there is no proof of the absence of ordinary care and skill in selecting him, the defendants’ first point ought to have been affirmed.
The third assignment alleges error in not affirming the defendants’ fourteenth point. Said point is as follows: “If the jury find that the bridge was constructed under the supervision and inspection of Willard, and that he was a competent bridge-builder, then even should they also find that the bridge shook and swayed in going over it, and that it became dangerous to go upon it with loaded coal wagons, this would not entitle the plaintiffs to recover unless knowledge was brought home to the proper officers of the defendant company of this fact, and the company neglected to repair the same.”
In considering this point it is important to understand just how the case stood before the jury at the time the instruction was asked for. The bridge in question was erected in 1874. The accident occurred in March 1877. The plaintiffs had called several witnesses to prove that months prior thereto the bridge was unsafe and dangerous; that it vibrated and shook whenever a loaded wagon passed over it. J. Harvey Robb says, “ it vibrated, it shook wonderfully.” The witness crossed it in November 1876, on the rear car of a coal train. In his cross-examination he says it swayed at
There was also a large amount of testimony offered by the plaintiffs to show that the foundations of the bridge were insufficient and that its original construction was defective. The case was tried upon the theory that it was improperly constructed and that the defendant company was the builder thereof, and therefore responsible for such defects. The pleadings, the evidence and the points submitted all show that the plaintiffs relied upon the defects in the original construction of the bridge, and upon that alone. In the printed argument of the plaintiffs, referring to this assignment of error, it is said: “ This, assignment falls to the ground, the defective construction being the act of the company. Notice was neither necessary nor material to the case. The law fixes the responsibility upon the neglect of the builder.”
As a further circumstance bearing upon this point we have the fact that John McEnery, the deceased, was in the employ of the defendant _ company at the time of his death, and had been for months previously; that it was his daily duty to drive a mule-team drawing several cars loaded with coal over this bridge, and that so far as the evidence in the case shows, neither John McEnery, nor any other person, ever gave notice to the defendant company of the dangerous condition of the bridge. Nor is there a word of evidence to show that the company knew it.
I have endeavored to show in the discussion of the plaintiffs’ first point (2d assignment), that if the defendants exercised ordinary care and skill in the selection of employees to construct the bridge they would not be responsible for defects resulting from its original construction. If, however, the defendants had knowledge of such defects, more especially if notice had been given to them thereof, and they had neglected to make the necessary repairs, they would be responsible not only to strangers, but even to one of their employees, provided he was not chargeable with concurring negligence or want of proper care, or neglect of duty on his part. This brings us to the important point in this branch of the ease.
It remains but to apply these well-settled principles of law. It was not a controverted fact that John McEnery, the deceased, had been using this bridge constantly for some months prior to his death; that he drove a mule team of loaded coal cars over it daily, if not several times each day. The plaintiffs proved that the bridge was in an exceedingly dangerous condition; that it swayed from side to side as the teams passed over it, so that the horses could scarcely keep their feet. The unsafe condition of the bridge therefore was patent; it must have been known to the deceased; it could not have been otherwise; yet with such knowledge he voluntarily continued in the service, and gave no notice to his employers of its dangerous condition, nor did he make any protest against being subjected to such perils. If the plaintiffs’ testimony be true, and we must assume it for the purposes of this point, by their own showing, John McEnery, the deceased, was guilty of gross negligence in exposing himself upon such a structure, and took upon
There was also error in affirming the plaintiffs’ third point. Said point affirms their right to recover by reason of the insufficient foundations of the bridge, if the jury believe them to be so, without regard to the question as to whether the defendant company or Mr. Willard was responsible for any alleged defects of construction.
It was not error to reject the.offer of evidence embraced in thé ninth assignment. The offer was vague in this, that it* fixed no time during which it was proposed to inquire into the habits of deceased as to carelessness. Eor anything that appears in the offer it might have been ten years prior to his death. Had the offer been confined to a short time before, it would have been competent under the authority of Pennsylvania Railroad Co. v. Books, 7 P. E. Smith 339, where it was held that “ where a habit of intoxication in a conductor is shown, it raises, in the case of an accident, a presumption of negligence, which stands until it is rebutted.” This language was applied to habits existing at the time of the accident.
Judgment reversed.