232 Pa. 456 | Pa. | 1911
Opinion by
This is an action instituted by a wife and husband under sec. 1, of the Act of May 8,1895, P. L. 54, to recover for personal injuries to the former and consequential losses to the latter. Pending the action the husband died and his wife was appointed administratrix of his estate; she continued the suit and obtained two verdicts, one for $2,000 in her own right, and the other for $500, as the personal representative of the estate of her deceased husband. Judgments were entered on both of these verdicts and the defendant has appealed.
The questions involved as printed in the appellant’s paper-book suggest but two points for our consideration;
The words “except actions for .... wrongs done to the person,” as used in this statute, do not describe a type of action but mean actions to recover for wrongs in the nature of physical injuries done to the person of the plaintiff decedent; and in interpreting this statute they have
Before leaving this branch of the case it may be well to note that the phrase “wrongs done to the person” in sec. 28 of the act of 1834, supra, and the phrase “injuries to the person” in sec. 18 of the Act of April 15, 1851, P. L. 669, are similar in meaning (Moe v. Smiley, supra); and that we have uniformly treated the latter as signifying injuries to the person of the plaintiff bringing the action, (Birch v. Ry. Co., 165 Pa. 339; Taylor’s Est., 179 Pa. 254; Maher v. Traction Co., 181 Pa. 391; Rodebaugh v. Traction Co., 190 Pa. 358, 362; McCafferty v. Railroad Co., 193 Pa. 339; Edwards v. Gimbel, 202 Pa. 30, 39); and not as designating a. type of action arising in whatever way from injuries to the person. The two sections referred to deal with a like subject, and there is no reason why the similar phrases used in each should not be given a like limited meaning. But if they were to be given a broader signification and held to embrace all actions growing out of injuries to the person, then the verdict recovered by the personal representatives of the deceased husband 'would fall within the remedial provision of sec. 18 of the act of 1851, supra. However, looking at the question for determination -in the light of our decided cases, we are brought to the conclusion that the phrases must be construed as before stated, that the act of 1834, supra, saved the action of Anthony W. Smith from abat
The second question involved as stated by the appellant is, “Can plaintiff recover on proof of negligence not alleged in her statement filed?” The defendant contends that the testimony adduced was not sufficient to support the averment in the statement describing the occurrence which brought the injuries upon the plaintiff, Mary Smith. The testimony was sufficient, if believed, to justify the jury in finding that a defective condition of the defendant’s tracks, which had existed for a sufficient length of time to put it on notice, caused one of its cars to become derailed and run into the frame dwelling house occupied by the plaintiff, thereby throwing Mrs. Smith to the floor' and producing the ’injuries of which she complained. Under these circumstances we cannot say that the allegata and probata did not agree, or that there was not sufficient evidence to sustain the verdict, if the jury saw fit to accept the testimony of the plaintiff and her witnesses.
The first, second, third and sixth assignments which cover all of the matters comprehended in or suggested by the statement of the questions involved, are overruled; the other assignments which complain of instructions and rulings unrelated to these matters and in no way suggested by the statement of the question involved, are dismissed: Willock v. Railroad Co., 229 Pa. 526. If the appellant desired the points covered by these latter assignments reviewed, it would have been sufficient, after stating the main questions for determination, had counsel added a few words to this effect, “Correctness of instructions as to the effect of nonproduction of certain testimony, and concerning the condition and conduct of plaintiff after accident; rulings on admission and rejection of testimony.” If those instructions and rulings were necessarily involved in or suggested by the principal questions stated, then this course would not be required, or desired. While we do not specifically pass upon the assignments in
The judgment is affirmed.