McCafferty v. Pennsylvania Railroad
44 A. 435
Pa.
1899
Check Treatment

Opinion by

Mr. Justice Fell,

On thе question of the defendant’s negligence the case was clearly for the jury. The accident was caused by a brоken rail. This rail had been in use for sixteen years as the outside rail on a sharp curve, and had been worn by the flanges оf the car wheels so that its weight had been reduced from sixty to fifty-five pounds per yard. It had been broken some months before the accident, and had been repaired by the use of splices or side bars, and admittedly it was greatly weakеned by both the wear and the fracture. In the face of this testimony ‍‌‌‌​‌​​​‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌​​​​‌​​‌​‌​‌‌​​​​‌‌‌‍it is idle to say that the case could have been withdrawn. Moreover, as the injury was to a passenger riding in the defendant’s car, and was caused by a defect in the roadway, there was prima facie a presumption of negligence which carried the case to the jury. This presumption having once arisen remained until overcome by countervailing proof. Whether it was so overcome was а question of fact for the jury. It had the same effect in shifting the burden of proof that affirmative evidence of negligenсe would have had: Penna. R. Co. v. Miller, 87 Pa. 395; Penna. R. Co. v. Weiss, 87 Pa. 447; Spear v. The P. W. & B. R. R. Co., 119 Pa. 61. In R. R. Co. v. Weiss, supra, it was said: “ The presumption of fact in law which carries a casе to the jury necessarily leaves them in possession ‍‌‌‌​‌​​​‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌​​​​‌​​‌​‌​‌‌​​​​‌‌‌‍of the case, and although the evidence to rebut the prеsumption may be very strong, yet it is a matter for the jury and not for the court.” ,

The connection between the accident and the death was not *345clearly established. The deceased was injured by the derailment of the car in which he was riding on April 1, 1896. He lived until April 12, 1897, and the immediate cause of his death was an abscess on the liver. A month before he died he had a severe attack of grippe. It was incumbent on the plaintiff to show with rеasonable certainty that the abscess was caused by the injury received. This it was difficult to do, as the disease is onе whose origin is difficult to trace. The medical testimony produced by the plaintiff was ‍‌‌‌​‌​​​‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌​​​​‌​​‌​‌​‌‌​​​​‌‌‌‍in itself far from convincing ; but it was fortified by proof that her son had never recovered from the effects of his injuries, and that they were apparently internal and indicated a serious derangement of the liver before he had the grippe. We are not preparеd to say that the court should have instructed the jury that the testimony did not warrant the conclusion that the death was the naturаl and proximate consequence of the accident. The question, however, is one which should be submitted with most careful instructions.

The instruction as to the measure of damages was erroneous in that it permitted a recovery for two distinct causes of action. The action was commenced by the deceased six months before his death, and аfter his death it was carried on by his'mother, who as administratrix of his estate had been substituted as plaintiff. This was done under sectiоn 18 of the act of April 15, 1851, which gives to a common-law ‍‌‌‌​‌​​​‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌​​​​‌​​‌​‌​‌‌​​​​‌‌‌‍action the quality of survivorship. The 19th section of the same aсt creates a new right of action, unknown to the common law, and limited to cases where death has resulted from violence or negligence, and no suit has been brought by the injured party in his lifetime. The act of April 26, 1855, designates the persоns who may exercise the right conferred by section 19 of the act of 1851: Huntingdon & Broad Top R. R. Co. v. Decker, 84 Pa. 419; Birch v. Ry. Co., 165 Pa. 339. Under these acts two actions cannоt be sustained for the same injury. If the party injured has brought an action and died it may be continued by his executor or administrator for the benefit of his estate, ‍‌‌‌​‌​​​‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌​​​​‌​​‌​‌​‌‌​​​​‌‌‌‍but in such a case no new action can be brought under section 19. If he has not brought an action, the parties designated by the act of 1855 may do so, and the recovery is in their right: Taylor’s Estate, 179 Pa. 254; Maher v. Phila. Traction Co., 181 Pa. 391.

*346If the action is continued for the benefit of the estate, the measure of damages is the loss sustained by the injured party. In the opinion in Maher v. Traction Co., supra, it was said by the present chief justice: “ As the action had been brought in the lifetime of the injured рarty and had survived by virtue of section 18 of the act of 1851, it logically follows that the damages recovered by her personal representatives should be the same as she could have recovered' had death not ensued. Included therein are damages for her. pain and suffering up to the time of her death, and diminution of earning power during a pеriod of life which she would have 'probably lived had the accident not happened. It is a mistake to suppose that the recovery in this case is for the death. It is still for the personal injury.” In some cases it has been said that the meаsure of damages includes the value of the life. But by this was not meant the value of the life to others, but the value of the advantages of which the injured party was deprived because of the diminution or loss of earning power. When an aсtion is brought after death by the “ husband, widow, children or parents of the deceased,” as provided by the act of 1855, the right оf recovery is in the party entitled to sue, and the measure of damages is the pecuniary loss sustained by reason of the death: Penna. R. Co. v. Butler, 57 Pa. 335.

The instruction given in this case permitted the jury to cumulate the damages, and to render a verdict both for the loss which the deceased sustained by reason of his injuries and for the loss which his parents sustained by reason of his death. This was clearly wrong.

The contention that the assignment of the action by the deceased is a bar to its further prosecution is without merit. The administratrix was the person empowered by the act of 1851 to continue the actiоn, whoever may be entitled to the amount received. If any question should arise between the assignee of the aсtion and the creditors of the estate it can be adjusted hereafter in the proper proceeding. This is not а matter which concerns the defendant.

The assignments of error which relate to the measure of damages are sustained and the judgment is reversed with a venire facias de novo.