210 Pa. 162 | Pa. | 1904
Opinion by
The plaintiff, about thirty-four years of age, was an oil inspector for the United States Pipe Line Company and resided for a number of years at Oil City, Pennsylvania. While a passenger on defendant’s train on March 10, 1903, a collision occurred whereby he was seriously injured. Alleging his injuries were caused by the negligence of the company lie brought this suit for damages. There was no contradiction of his testimony, that he was injured in the collision, but there was a serious conflict as to the nature of his injuries, their extent, whether he had been incapacitated thereby, and the probable duration of the incapacity, whether permanent or only temporary. The court submitted the evidence bearing on the different questions raised to the jury, who found a verdict for plaintiff in the sum of $21,440. Judgment having been entered on this verdict the railroad company brings this appeal assigning fifteen errors.
The assignments first to fourth inclusive, complain of the court permitting plaintiff to detail minutely the results of his injuries, the incontinence of urine, irregularity of bowels and such like, especially as such results were not particularly averred in the declaration. . The plaintiff’s declaration, it is true, is somewhat general, but it avers with sufficient clearness and precision the collision, that plaintiff was injured, the damages he sustained and that his injuries were caused by the negligence
The fifth assignment is to the admission of plaintiff’s testimony, that since his injury he had refused remunerative employment in his business. The court admitted this because it would tend to show the kind of work plaintiff, as he alleged, was unable to perform after the injury, so tending to show the nature of his injuries; it was not admitted for the purpose of showing what he might have received for such work had he been able to perform it. Plaintiff’s counsel may have argued inferentially, from his answers, that his compensation would, have been large, but the court committed no error in its qualified admission of the evidence. This assignment is overruled.
Appellant’s sixth, seventh, tenth, eleventh, twelfth and thirteenth assignments are all in effect to the charge of the court. We have examined them carefully and must say in view of the evidence, that there is not the semblance of well-founded error in any of them. For example, it is argued by appellant in his sixth assignment that it is an accepted theory of the surgical world that a man whose spine is dislocated cannot walk. Dr. Brush testified that a case came before him of a man with a dislocated spine who did walk. In commenting on this the learned trial judge said: “ Now, gentleman, how is this ? If the one is theory and is contradicted by facts, theories must always give way to facts, so that the question is one for the jury.” We see no error in this; all sound theories must be based on or be deducible from facts; if it be an accepted theory that a man with a dislocated spine cannot walk, then if it be established that a single man with a dislocated spine does walk, the theory must be narrowed or modified to one which accords with the facts, that men with dislocated spines seldom walk, or if the facts of walking become too numerous, the theory falls.
In none of these assignments to the comments of the learned judge do we discover anything more serious than that we have noticed; all are overruled.
“ If the jury find that the plaintiff has rendered' no services to his employer, the United States Pipe Line Company, since the time of the accident, they are not to allow in mitigation of damages any salary he may have received from his employer since the accident.”
“ The court: We answer that by saying that it is affirmed, unless the jury find that the amount so paid to plaintiff was by way of compensation for services rendered by the plaintiff and not as a mere gratuity, as we have already explained in the general charge.”
The argument is, that there was no evidence to justify the qualification by which the court left it to the jury to find whether the money received by plaintiff from his employer, the pipe line company, was a gratuity. There is no doubt but that after the injury plaintiff received from the company his regular salary. The plaintiff testifies that he often went to the refineries at Oil City after his injury and performed services for the company for which it and another company paid him $2,800 per year, just the sum he received before. Plaintiff’s own testimony as to just how long after the injuries these payments continued is not clear but they continued for some time; it is clear, however, that during all the time he was receiving payment except for a few weeks when consulting surgeons he was performing services for his company, while not of the same extent perhaps as before the injury, they were of the same character. The treasurer of the company testifies that he paid plaintiff every month since the injury just as before ; that he had one vacatiozr lasting a month or two during that time. The coznpany eoxztinued to pay his regular salary after his injury, azid so far as his own testimoziy and that of the treasurer shows, the paymezit was for services, izzefficient perhaps coznpared to those before his injury, but still for services rezidered by him to the coznpany. In the general charge to which the court refers the jury it says : “ If on the other hand he did not perfoz’m any services from the time of the accident and it was given more as a gratuity, a gift ozi the paz't of
Counsel for appellee say they adopt as a clear exposition of the law tlie court’s answer to plaintiff’s third point. So do we, but the trouble is not with the law but with the evidence. The authorities cited by counsel abundantly sustain his argument; but from the evidence this was not a mere gratuity but wage or salary and as the very foundation of the suit is plaintiff’s loss of earning power in the years succeeding the accident, there is no reason why he should be compensated for loss of earning power in the past when according to liis own evidence that power was practically unabated for a year or two after the accident. The error was in permitting the jury to compensate him for earnings he had actually received. We think the court below, inadvertently perhaps, failed to make the distinction.
The eighth and ninth assignments are, therefore, sustained, the judgment is reversed and a v. f. de novo awarded.