57 Pa. 335 | Pa. | 1868
The opinion of the court was delivered, by
This was an action by the defendants below as guardians of the minor children of William Butler, deceased, against the plaintiffs in error, to recover damages on account of the death of their father, caused as it was alleged by negligence.
The 1st error assigned has been properly abandoned, as it is too well settled to be now controverted, that a stipulation by a common carrier that he shall not be liable for damages, does not relieve him from responsibility for actual negligence by himself or servants. Groldey v. Pennsylvania Railroad Co., 6 Casey 242; Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315. The charge was as favorable to the plaintiffs in error on this point as they could have asked.
The 2d error assigned is, that the learned judge erred in his instructions to the jury as to the measure of damages. These instructions were as follows: “ It would perhaps be a fair way to estimate the amount of damages, to take the probable amount of his (deceased’s) accumulations for the time he might reasonably have been expected to live, and find that for the plaintiff. This, as we said, may be a fair way of calculating the damages sustained; but as it has been said in Pennsylvania Railroad Co. v. McCloskey, 11 Harris 526, if you can find a better rule you are at liberty to adopt it. In estimating his accumulations, you will remember that it might not be fair to deduct his family expenses, because his family lived out of it, and now they do not have it to
The 3d assignment of error is, because the court erred in admitting the testimony of George W. Wiley, touching the dependence of the plaintiffs below on their grandparents, and the circumstances of those grandparents. This was clearly irrelevant, and had no bearing whatever on the true measure of damages, the pecuniary loss' of the plaintiffs. The learned judge below became convinced himself that it was so, and in his charge withdrew it entirely from the consideration of the jury. That this may sometimes be done has certainly been decided. The rule upon this subject with its qualifications, is well stated and explained in The .Delaware and Hudson Canal Co. v. Barnes, 7 Casey 193. It is in entire accordance with the opinion in that case to hold, as we do here, that if improper evidence is given tending to inflame the damages, and it is not struck out at or before the close of the testimony, so that counsel shall not be allowed to refer to or dwell upon it in their address to the jury, it is altogether too late to cure the mistake by directing the jury to disregard it in tho
Judgment reversed, and venire facias de novo awarded.