153 A. 117 | Pa. | 1930
Anthony Raskus, aged 35, was killed by a car of the defendant company on the evening of August 28, 1927, and his wife brought suit for damages suffered by herself and children. In her statement of claim, she set forth the intention of her husband to board an inter-urban trolley at a regular stopping place, but that no service station or platform was provided at that point, and it became necessary for him to stand on the track, where he was struck by the oncoming car. The evidence produced failed to substantiate this claim, but testimony was offered to show that he had crossed the railway track to the east, where a fence, constructed about three feet from the rails, narrowed the passageway, and left such little room for one there located that it was impossible to avoid being hit. When the plaintiff's case *37 was closed, an amendment of the pleadings was asked, so as to conform to the proof of negligence offered. This was allowed, against objection made on the ground that a second cause of action was thus relied on, which was unenforceable because the time of bringing a new suit had passed. On this appeal, it is strongly urged that the permission granted to plaintiff had the effect contended for, but we are not satisfied of the correctness of this position.
This court, in a recent opinion by Mr. Justice KEPHART, in Goldberg v. Friedrich,
The testimony at the trial was of a very conflicting character, that of the plaintiff indicating that a proper place for intending passengers had not been provided, and contact with the car was made inevitable, if not stopped at the usual point, because of the insufficiency of the intervening space on the east between the rail and fence. The witnesses for defendant testified that an unobstructed opening between two posts had been set apart for those desiring to enter the cars, not closed by any connecting rail, in which those wishing to board the car could safely enter and stand. This was the subject of serious dispute, evidence being produced to show the fence was not in this condition at the point in question, but had been altered after the accident by the removal of the rail theretofore in place, and which was absent when the maps and photographs offered were taken. A question for the jury thus arose, and, under adequate instructions as to negligence and contributory negligence, it found a verdict for plaintiff in the sum of $25,000, subsequently reduced by the court to $22,500. A new trial, as well as motion for judgment n. o. v. was refused. This appeal followed.
One error assigned, the sixth, alone requires consideration. Complaint is made of the portion of the court's charge which reads as follows: "It is also proper to consider Mrs. Raskus's age, and how long she probably would live and would need or require support from her husband if he had lived." The jury was told to consider the probable period during which the deceased could labor and earn, considering the dangers of his employment, but no specific proof of his expectancy of life was attempted by the production of annuity tables. Such *39
evidence was not required, and indeed it has been said that, if the circumstances were sufficiently disclosed from which the jury could make a reasonable estimate of the expected loss of earning power, which would be devoted to the support of plaintiff, it is best to leave the matter of possible length of estimated life entirely to that body: McCaffery v. Schwartz,
The difficulty with the instruction complained of is in stating that the jury should note the probable life of the wife, whose age was shown by plaintiff to be about five years less than that of her husband. The court told the jury it must consider how long she would probably live, and would require assistance from her husband if he had not died, and the amount thereof. The wife could recover nothing beyond the sum based on the husband's expectancy, whereas the jury was permitted to calculate the damages on the extent of her life, and, as she was younger, her possibility of living a longer time was necessarily greater; at any rate, no evidence or tables were offered to show that because of her sex, or physical condition, it would be the same or less.
In reversing a judgment where such error was present, Chief Justice MITCHELL said, in Emery v. Philadelphia,
Following this precedent, Mr. Justice FRAZER declared, in Kelly v. Director General,
It was incumbent on the court to correctly advise the jury as to its duty in determining the damages recoverable, and, though no special instructions were asked as to this, a general exception was taken to the charge. The court did, however, make an incorrect and misleading statement as to a material matter in its charge, and we cannot surmise that the verdict was not affected thereby: Aylesworth v. Hays,
For the reason stated, the sixth assignment of error is sustained, and the judgment is reversed with a venire facias de novo.