31 Pa. Super. 580 | Pa. Super. Ct. | 1906
Opinion by
The first question involved, as stated by the appellant, is:
“ Plaintiffs’ statement set forth in detail alleged acts of negligence on part of defendant. The evidence failed to prove the allegations. Can the variance between the allegations and proofs sustain the verdicts rendered and judgment entered thereon ? ”
The evidence, as we read it, sustained the general allegation
The other question is based upon the second assignment of error, which is : “ The court erred in charging the jury as follows : ‘ Under the declaration, they are not claiming more than $1,000 for permanent injury, that is, for the injury he will sustain subsequent to the present time or after he becomes twenty-one years of age, and subsequent to the time of bringing this suit. So far as Stanley is concerned, that is what they claim for permanent injury, but they have declared for $2,000 for injury up to the present time. It is not for j-ou to say they shall have that much, but for you to say how much under the evidence they shall have; but what we say is, you cannot go beyond those amounts; that is, the father has declared for $1,000, and you cannot go beyond that amount, however much less- you may find. You may find anything less or nothing at all,— whatever you think the evidence will warrant. But Stanley’s claim is for $1,000 for permanent injury and $2,000 for the injury up to the time of filing this declaration. You are not obliged to find that amount, but can find no more than that on the separate items, but can find any amount near to or less than that you may deem proper under the circumstances of the case.’ ”
The court having previously explained to the jury what the measure of damages was in the case of both father and son, for
The testimony of Dr. Taylor, which was very full and detailed, as to the character of the accident, the result of the operation which necessarily followed, the condition of the lad’s foot and the suffering and other inconveniences which resulted, gave the jury an excellent basis for the exercise of their discretion as to the amount of damages to be awarded under the rule laid down by the court. The jury having awarded the father the sum of $200, and the son $1,000 which in the verdict was divided into “ $250 for injuries and pain sustained up to the present time, and for permanent injuries $750,” we cannot see that there was any failure on their part to exercise a sound discretion.
The verdict cannot be deemed excessive, and the question of negligence having been determined upon proper evidence, the admission of which is not here questioned, we see no reason to interfere with the judgment.
It is, therefore, affirmed.