Kost v. Ashland Borough , 236 Pa. 164 ( 1912 )

Opinion by

Mr. Chief Justice Fell,

This action was by a parent to recover for the loss occasioned by the death of a child, ten years of age, who was killed by the falling of a pole in a public street. The pole was erected some fifteen or twenty years before the accident and its use was to sustain an electric light pole on the opposite side of the street with which it was connected by a steel cable. It broke at or near the surface of the ground where it was much decayed, but the decay was from the inside and there was but little if any indication of decay on the surface of the pole. It was undoubtedly in a dangerous condition, there being only a mere shell of sound wood on the outside. The question of the exercise of reasonable care in the supervision and inspection by the borough was, under the circumstances, for the jury and the general instruction in relation thereto was free from error.

The case, however, was tried by the plaintiff and submitted by the court to the jury on the theory that the duty of the borough was the same whether the pole had been erected by the borough or by a corporation having the right to use the streets of the borough for that purpose. The defendant offered testimony to show that the pole had been placed at the side of the street by an electrict light company that had authority under its charter powers and the laws of the Commonwealth to erect poles in the borough streets. These offers were overruled. It was competent for the defendant to show that the pole was not unlawfully upon the street, but had been erected by a corporation that had a legal right to erect it and upon whom the duty to maintain it in a safe condition primarily rested. This fact would not have relieved*the defendant from the duty of supervision and inspection, but its duty would have been secondary and the rule in relation thereto is less stringent than that which would apply if the pole had been unlawfully upon the street or had been erected by it and was under its sole management. The duty of a municipality to keep its streets in a reasonably safe condition extends to cases where an unsafe condition of its streets is brought about by others than its agents. But as the basis of an action against it is negligence and its duty is that of inspection, it must be shown that it had notice of the defect or might have known thereof by the use of reasonable care and watchfulness: 28 Cyc. 1353. Its duty in the care of its streets was not to seek for defects but to observe them when they became observable in the exercise of reasonable supervision: Lohr v. Philipsburg Boro., 156 Pa. 246.

The objection that there was no evidence of the probable earnings of the child during minority that would sustain a verdict for the amount awarded by the jury is not based on an exception, but as the case goes back for trial it is proper to say that we find no evidence to justify the amount of the verdict. The total loss proved, including all the expenses incurred was $122.69. The verdict was for $3,500.00. The difference betweeen these amounts presumably represents the jury’s estimate of the present worth of the services of a school girl ten years old or her probable earnings, during minority, less the cost of maintenance and education taking into consideration the uncertainties of health and sickness and of life and death. It is inconceivable that the amount of the verdict was the result of an intelligent effort to ascertain or approximate an amount which would be compensation for pecuniary loss. The only proof upon the subiect was that she assisted an older sister in household work and the care of younger children of the family. So many uncertain elements enter into any estimate of the pecuniary loss of a parent by the death of a minor child that the subject is always one of difficulty, but as in otber cases, a recovery must be based on proofs, and without them no verdict should be permitted to stand. This subject has been considered in two recent cases, Peters v. Besser, Etc., R. R. Co., 225 Pa. 307, and Beck v. Balt. & Ohio R. R. Co., 233 Pa. 344, in which it was held that there could not be a recovery for items of loss not proved.

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