230 Pa. 29 | Pa. | 1911
Opinion by
The action was for damages for personal injury sustained by the plaintiff while a passenger on one of defendant’s cars. It resulted in a very substantial verdict for the plaintiff. The appeal brings before us for review so much of the charge of the court as relates to the measure of damages, and a single question of evidence. The elements of damage considered in the case were the pain and suffering endured and likely yet to be endured, and the loss of earning power. It is complained that the instruction with respect to the admeasurement of these
“In personal injury cases like the present one the measure of damages includes compensation for pain and suffering, medical expenses and loss of earnings and earning power. While compensation for pain and suffering cannot be measured by any fixed standard such as we apply to things bought and sold in the markets, the law allows a reasonable sum, the amount to be fixed by the wise and fair discretion of the jury. As a result of the injury you will allow Mr. McLane compensation for the pain and suffering he has undergone from June, 1903, to the present time, and also the present worth of pain, if any likely to be suffered by him in the future.” We only remark on the brevity of this instruction to emphasize the importance, when the effort is to be brief and concise in the charge, of being strictly exact in the use of terms. A little elaboration by way of explanation would have made clear to the jury what is here left obscure, and what may have been, for all we know, misleading. It will be noticed that two standards of measurement are set up. With respect to past pain and suffering, the jury are directed to allow compensation; with respect to that yet likely to result, they are to allow present worth. The professional mind would not, of course, understand from the language used that different standards were intended. The charge however was not addressed to the professional mind, but to a jury composed of laymen, and was for their instruction and guidance. What meaning would they derive from the words, “present worth”? Compensation expresses a thought easily grasped, however difficult it may be to work it out in practical result. Worth is the quality of a thing which gives it value, and is as easily comprehended. The two words are not equivalent, and we have no right to suppose that the jury
If we turn to the instruction as to the other element of damage, loss of earning power, the inadequacy is quite as apparent. The charge proceeds, “Earning power, which is an element of damage claimed in this case, depends upon the age of the person, his station in life, condition of health and habits of industry. Earning power results from the ability to work, and ability to work may be slight or more, or much, and the earning reward in like proportion. In earning power what has the plaintiff lost from June, 1903, to the present time? Allow him for that. And if the evidence satisfies you that his earning power for the future has been impaired by the injury he received, to what extent has it been impaired and how long will it last? Is the impairment of ability to work total or partial? .... Whatever you determine as to probable duration of his life and as to the impairment of his power to work, to earn, the compensation to be allowed for any future loss of earning and for pain and suffering must be its present worth, for whatever is allowed for such future loss is payable now.” While there may be no positive error in this instruction as to measure of damages, it is far from being such a presentation of the law governing this question as was required for the proper guidance of the jury in their investigation of the case. The
Since another trial of the case must result, an expression on the question of evidence raised by the first and second assignments is required. At the time plaintiff’s injuries were received he was .engaged in the huckstering business which he conducted unaided, giving to it his personal attention, and devoting to it all his time. When on the stand he was asked with respect to the profits derived from the business. Upon objection the question was disallowed. Subsequently the plaintiff’s mother was called, and was permitted, under objection, to testify that plaintiff had no other source of income than his huckstering, and that out of said income he had paid her from $50.00 to $60.00 each month for a period of a year or more prior to his injury. However questionable this evidence, it is evident that it was resorted to in order to supply, as far as possible, so much of the plaintiff’s own testimony as had been rejected, the profits of his business. The rejection of that testimony was error. We need only refer to the case of Wallace v. Penna. R. R. Co., 195 Pa. 127, where it is held, the present Chief Justice delivering the opinion, that "profits derived from capital invested in business cannot be considered as earnings, but in many cases profits derived from the management of business may properly be considered as measuring the earning power. This is especially true when the business is one which requires and receives the personal attention and labor of the owner.” We need not express ourselves further on this branch of the case. The judgment is reversed, and a venire de novo awarded.