85 Pa. Super. 275 | Pa. Super. Ct. | 1924
Argued October 28, 1924. Plaintiff brought this action in trespass for personal injuries received in a head-on collision between his automobile and one of defendant's cars. The verdict in his favor established defendant's negligence. Two questions are raised by the appeal: (1) Plaintiff's contributory negligence; (2) the court's answer to one of defendant's points on the subject of damages.
(1) Plaintiff was driving his automobile from Gibbstown, N.J., to his home in Philadelphia, and about 6:30 p.m. was traveling on Germantown Avenue, a well-lighted street, with his automobile lights on. As he approached Diamond Street, he was compelled to use the street railway track, because of vehicles parked on both sides of it and before he could turn out again his engine stalled. He was then about seventy-five feet from Diamond Street. He tried to start his engine and while so engaged one of defendant's street cars came towards him and stopped at Diamond Street, to take on or let *277
off passengers. The trolley car then started and notwithstanding warning given by persons on the street to the motorman when the car was fifty feet from plaintiff's automobile, ran him down and injured him as he was trying to crawl out over some boards or scaffolding with which his automobile was loaded. This was not the case of a person suddenly driving upon a street railway track in the face of an approaching trolley car, or of a driver negligently remaining on such track, although he could have turned safely to one side, as in Ciszkowicz v. Scranton Ry. Co.,
(2) Plaintiff was a steeple jack, who at the time he was hurt was at work with two ground assistants on a job for the DuPonts at Gibbstown, electrically welding ladders on a 200-foot stack. He received $50 a day and paid his helpers $5 a day each, leaving a net return to him of $40 per day. His work at Gibbstown required eleven or twelve days more to finish, and then he was going to the Deep Water Plant of the DuPonts on another job. His testimony was that he could work at his *278 business in winter except on blowy or stormy days; that he was accustomed to earn as a steeple jack from $40 to $50 per day, and had not been able to do any work from January, 1923, when he was hurt, until June, 1923, about five months; and that when he did go to work he suffered from dizziness and was not able to climb high stacks but had to employ men to do so, and pay them about four-fifths of the amount he received. In view of this testimony the court would not have been justified in charging the jury that, "There is no sufficient evidence of any loss of earnings for any period other than that required to finish the job on which the plaintiff was working at the time of the accident," as requested by the defendant's second point. It went too far. The plaintiff was engaged for another job by the DuPonts as soon as he finished this one and if it took only one day to complete, it required a refusal of the defendant's point. Besides, the jury might consider that plaintiff could work, according to his testimony, even in winter, on days which were not stormy and blowy; and they were competent to find from their own knowledge and experience that there were days between January and June that were not unsuitable for such work. A man whose employment is in the open, such as a bricklayer, or stone mason, or even a steeple jack, is not to be denied all compensation for loss of earnings, simply because he does not give exact evidence as to the number of clear days on which he might have worked. Where his employment is reasonably steady in good weather, as this plaintiff testified, the jury may allow a reasonable amount for loss of earnings taking into consideration their own knowledge of weather conditions.
The assignments of error are overruled and the judgment is affirmed. *279