Schenkel v. Pittsburg & Birmingham Traction Co.

194 Pa. 182 | Pa. | 1899

Opinion by

Mr. Justice Mitchell,

A disabled car was being pushed by another car behind it, and at Southern avenue where appellant’s line was crossed by ■the Suburban Company at right angles, the trolley pole of the disabled car jumped its own wire, struck and broke the wire of the cross line, and thus caused the accident by which plaintiff - was injured. There was testimony that the proper course under such circumstances was to tie down the trolley pole of the disabled caí’, and that in this case the conductor was told by the conductor of the rear and operating car to do so, but he refused or neglected. It was therefore clearly a case for the jury, and the court- was right in refusing a peremptory instruction for defendant.

The second and third assignments of error are to the charge on the subject of damages for pain and suffering. The learned judge charged that the plaintiff, Mrs. Schenkel, “ from the mere fact that she has suffered in the past, and, if her story satisfies you of its correctness, will suffer pain and inconvenience for a longer or shorter time in the future, is at least entitled to nominal damages for the injury that is done to her. In view of those facts you may take into consideration, and ought to take into consideration, the fact that her future life may be more or less annoyed, and lier happiness and enjoyment interfered with, by reason of her physical condition which prevents her from Laving tliose enjoyments that people in good health are accustomed to have and ordinarily do have. While you cannot undertake to pay her for the injury, for the pain and suffering, you have a right to take into consideration the fact that her future life will bo more or less affected by tbe pain and suffering incident to this accident, and for that she ought to have s nne allowance.” It is claimed that this permitted tbe jury to give damages for pain and suffering “ as a separate and distinct item,” and that this is contrary to tbe rule laid down in Goodhart v. Penna. R. Co., 177 Pa. 1. But the objection is founded on a misapprehension of that decision. Pain and suffering are a distinct and separate item for which damages may bo awarded by tlie jury, and are so classed in that case. “ Damages for a personal injury consist of throe principal items : first, tbe expense to wliicli tlie injured person is subjected; . . . . second, the inconvenience and suffering naturally resulting from it; third, the loss of earning power, ” etc. The opinion then refers to Owens v. Peoples Pass. Ry. Co., 155 Pa. 334, where a charge, lx you find for the plaintiff he is entitled to recover such ail amount as will compensate him for his pain and suffering,” was held to he correct. In his opinion in Goodhart v. Penna. R. Co., our late Brother Williams was combating the erroneous practice which was beginning to appear, of suggesting to the jury as a, measure of damages what amount of money they or any other third person would individually take to submit to an injury similar to tlie one before tliem. See Baker v. Penna. R. Co., 142 Pa. 503. In so doing lie pointed out very clearly that pain and suffering are not capable of exact pecuniary measure, and can have no market price. lie then said, “ An instruction that leaves the jury to.regard it (pain) as an independent item of damages to be compensated by a sum of money that may be regarded as a pecuniary equivalent is not only inexact, but it is erroneous. The word ‘ compensation ’ in the phrase ‘ compensation for pain and suffering ’ is not to be understood as meaning price or value.” The last part of this extract is the keynote of it. What the judge meant to condemn as error was not the consideration of pain and suffering as an independent item of damages, for that he had already said they were in the passage first quoted, supra, but that they were to be regarded as such item, having a fixed value or equivalent of a market price. In his desire to mark the distinction he suggests the word ‘ allowance ’ in place of ‘ compensation ’ for pain and suffering. But this was merely to make his meaning clear. Compensation is the established, appropriate, more exact and better word. It is however compensation, not as a precise equivalent or valuation nor compensation from a sentimental or benevolent standpoint, but such amount as will be the most reasonable approximation the circumstances admit to a pecuniaiy compensation not in the nature of things capable of exact measurement. In the present case the learned judge followed the uniform rule and the objections to his charge cannot be sustained.

The last assignment is that the court below erred in not setting aside the verdict as excessive. The power of this court to grant a new trial under the Act of May 20, 1891, P. L. 101, is exceptional in character, and only to be exercised in very clear cases of wrong or injustice which the court below should have remedied: Smith v. Times Co., 178 Pa. 481. There is nothing in this case to bring it within that rule.

Judgment affirmed.