Woeckner v. Erie Electric Motor Co. , 182 Pa. 182 ( 1897 )

Opinión by

Mr. Justice Fell,

The objection that in estimating the damages the jury was not confined to the pecuniary loss sustained by the plaintiff is well founded. In an action by a parent to recover for loss occasioned by the injury of his child the measure of damages is the pecuniary loss to him. His action is for the injury done him, not for the injury done his child or for the loss or inconvenience to other members of his family whose cares and burdens have been increased. It is based upon his duty to maintain, protect and educate his child, and on his right to the earnings of the child during minority. The elements to be considered in assessing the damages are the expenses which he has incurred or is likely to incur in the support of the child on account of the injury, and the loss which will probably result to him from the decrease in the earnings of the child to which he is entitled. These principles were fully recognized by the learned judge in his charge, but by the answers to points and the admission of testimony the jury was allowed to consider as elements of damage the increased inconvenience and trouble caused other members of the family. The duties performed by them in the care of the injured child cost the plaintiff nothing and caused him no pecuniary loss, and they cannot be made the ground of a recovery by him. It was said in the opinion in Goodhart v. Penna. R. Co., 177 Pa. 10 : “ The expenses for which a plaintiff may recover must be such as have actually been paid or such as in the judgment of the jury are reasonably necessary to be incurred. The plaintiff cannot recover for the nursing and attendance of the members of his own household, unless they are hired servants. The care of his wife and minor children in ministering to his needs involves the performance of the ordinary offices of affection, which is their duty, but it involves no legal liability on his part and, therefore, affords no basis for a claim against a defendant for expenses incurred.” If the increased attention required by the child had deprived the plaintiff of the services of other members of his family in his business, and thus caused him direct pecuniary loss, his claim for compensation would rest on substantially the same ground as if he had been required to employ additional help; but for the mere inconvenience to others not affecting him pecuniarily there can be no recovery.

To permit a child who is not of an age to understand and avoid danger to wander on the streets of a city unattended is such negligence on the part of parents as will defeat a recovery by them. Permission was given to prove that the child on the occasion when she was injured had been permitted to go on the street without a proper caretaker. The offers of testimony rejected were to show that on other occasions she had been allowed to play on the streets unattended. This testimony would have been relevant had there been an issue whether on this occasion she was doing what she had habitually been permitted to do. But no such issue was raised. It was undisputed that she had escaped and attempted to cross the street, notwithstanding the exercise of some care and vigilance by her parents. The circumstances were clearly shown, and there was no conflict in the testimony as to them. In charge of an elder sister old enough to be a reasonably competent caretaker, she had been allowed to cross the street, and after returning to the door of her father’s house she disobeyed the direction of her sister to follow her, and unobserved ran into the street. Her escape was known within a moment or two, and an elder brother was sent after her. She was injured before he could reach her. As to this there was no dispute, and it was not error to exclude testimony to show that on other occasions she had not been protected from injury. The question whether her parents had exercised proper care on this occasion was very fully and fairly submitted to the jury. The judge could not have said as matter of law that their negligence prevented a recovery.

The first, second, fourth and nineteenth assignments of error are sustained, and the judgment is reversed with a venire facias de novo.