270 Pa. 54 | Pa. | 1918
Opinion by
This appeal, by defendant, is from a verdict and judgment for plaintiff in an action for personal injuries sustained by plaintiff in a collision between his automobile and defendant’s motor truck.
With two companions, plaintiff was driving southward on Broad Street, Philadelphia, at 1:30 a. m. The street is sixty-nine feet wide from curb to curb and according to city rules the east side is used for northbound traffic and the west for southbound. Various witnesses testified that at the time of the accident defendant’s truck, also southbound, was being driven at a speed ranging from 8 to 15 miles an hour, while plaintiff’s speed was from 15 to 18 miles an hour. A conflict of testimony in regard to the details of the accident exists between the driver of defendant’s truck and another employee who was riding on the truck on the one hand, and the plaintiff and Ms two companions on the other; the
The contention of defendant, in support of its argument for the entry of judgment non obstante veredicto, is that, assuming the driver suddenly turned the truck as described by plaintiff, this act was not negligence on his part in absence of evidence showing he was aware, or should have known of, the presence of plaintiff’s car on his right; and further, as plaintiff approached without warning, the truck driver owed him no duty of signaling or otherwise notifying him of his intention to turn into ■ and use a part of the street allotted to southbound traffic. Defendant further argued plaintiff was guilty of contributory negligence in attempting to pass to the right instead of the left without signaling his intention to do so. Section 13, of the Act of July 7,1913, P. L. 672, 679,
A general rule relating to the use of highways in this State was laid down in Bolton v. Colder, 1 Watts 360, to the effect that a vehicle desiring to pass another traveling in the same direction may do so on either side if there is convenient room to pass; the court there further said the general rule of the road requiring vehicles moving in opposite directions to pass to the right was made
With these cases before us we cannot say, as matter of law, that plaintiff was guilty of contributory negligence in attempting, in view of the open space, to pass to the right of defendant’s car; and for the same reason it cannot be said, as matter of law, under the particular circumstances of this ease, that the driver of defendant’s truck owed no duty to the driver of the car attempting so
The remaining question is whether the court was in error in permitting the jury to compensate plaintiff for loss of future earning-power. Plaintiff was sales manager for a company engaged in selling books and in connection with his duties had charge of from forty to sixty salesmen, located in various states, and over whom hq was required to keep personal supervision by visiting them at different times, which duties necessitated con
Plaintiff sustained three broken ribs which caused internal adhesions, resulting in- pain on exertion and difficulty in breathing, also fractures of the kneecaps, one of which failed to properly unite and was not as strong as previous to the accident. While he has entirely recovered from other injuries sustained, .yet, according to the testimony of his physicians, the injuries just referred to are of a permanent character and will be more or less troublesome and painful. Plaintiff himself testified the injury to his chest interfered with his breathing, and that to his leg interfered with rapid locomotion and prevented him from ascending and descending stairs without pain and that one leg was smaller than the other. Notwithstanding this evidence, defendant contends that, as plaintiff’s earnings in the employment he followed before and since his injury have not decreased, the court committed error in permitting the jury to allow damages for loss of future earnings, this contention being based on the theory that loss of earning-power is represented by the difference between the earnings the injured person received previous to his injuries and what he subsequently received in the same employment. This is not the correct rule. The true basis of such claim is not for loss of earnings but loss of earning-power, occasioned by the injury, and the difference between earnings before and after the injury is merely an item of evidence to be considered by the jury in connection with other evidence in determining the extent, if any, the earning-power has been reduced: McLaughlin v. Corry City, 77 Pa. 109; Bockelcamp v. Lackawanna, etc., B. R. Co., 232 Pa. 66. The fact that an injured person remains in the same position he occupied before his injury was received at the same salary
The question was fully considered in the case last cited where it was said (pages 128, 129) : “The learned counsel for the appellant seemed to think, in view of the fact that the plaintiff’s weekly wage was the same after as before the accident, the earning capacity of the plaintiff had not been diminished by reason of the injury, and, hence, he was not entitled to recover damages in this case. That is not the standard by which the plaintiff’s future earning capacity should be tested; it is whether the power or capacity to earn has been diminished as a result of the injury: Leonhardt v. Green, 251 Pa. 579. The earnings of the plaintiff, subsequent to the injury, are, as compared with his earnings prior to the injury, evidence, but not conclusive, as to whether his earning-power has been diminished by reason of the injury resulting from the accident: McLaughlin v. Corry, 77 Pa. 109. There was evidence in the case that the plaintiff’s strength was much impaired, and that he was permanently unable to do as much or as heavy work as before the accident. He may, therefore, as could have been found by the jury from this evidence, be compelled in the future to accept less remunerative employment than if he had not been injured. The fact that he was receiving at the time of the trial the same wage he had received previous to his injury was no assurance that in the future he would recéive the same wage for similar employment, or that his injured condition would not compel
The cases relied upon by appellant do not lay down a rule different from that announced in the cases above cited. In Wallace v. Penna. R. R. Co., 195 Pa. 127, there was merely evidence of loss of revenue from plaintiff’s business as a boarding-house keeper, and the jury was allowed to infer a diminution of plaintiff’s earning-power from this fact, neither the cause of the falling off of business nor its effect upon the profits being shown. This court said (page 130) : “We are of the opinion that it was competent to show the profits of the plaintiff’s business as a measure of her earning-power, but we are constrained to hold that there was not sufficient evidence on this subject to warrant its submission to the jury.” In Bockelcamp v. Lackawannna, etc., R. R. Co., supra, the judgment of the lower court was reversed because of improper statements in the charge concerning the measure of damages; there is nothing, however, in the opinion to show the court considered the fact that earnings were the same after as before the accident was conclusive of the right of plaintiff to recover for loss of earning-power. The decision is, in fact, directly to the contrary, as appears from the syllabus and from the opinion on page 71. In Helmstetter v. Pittsburgh Rys. Co., 243 Pa.- 422, the court said (pages 425, 426): “Loss of earning power is only one of the elements of damage in cases of personal injury, but it is an element which must be fairly proved before an allowance can be made therefor.” That case turned upon the question whether the earnings of plaintiff in an occupation last followed, thirteen years previous to the accident, could be considered in determining loss of earning-power, the purpose being to show the earnings in that service were greater than those in the occupation plaintiff followed at the time of the accident, and in which he continued to receive the same salary following his injury. This court held the .admission of such evidence to be error for the reason it
In view of the business of appellant requiring considerable traveling and, consequently, more or less physical exertion, and the testimony as to the nature of his injuries and their probable effect on his ability to perform the duties of his occupation in the future, there was evidence in this case from which the jury had the right to find a decrease in earning-power, notwithstanding the fact that plaintiff was at the time of the trial enjoying the same income he received previous to the accident.
The assignments of error are overruled and the judgment is affirmed.
Note.—Owing to an oversight the reporting of this opinion has been delayed until the present time.