Reitler v. Pennsylvania Railroad , 238 Pa. 1 ( 1913 )

Opinion by

Mr. Justice Elkin,

It may be conceded that upon the question of the contributory negligence of the appellee this is a close case, but after a careful review of all the testimony we have concluded it was for the jury. Whether the driver of the team stopped, looked and listened at a proper place, or failed in the performance of any other duty required of him under the circumstances, were questions of fact for the jury and not of law for the court. The testimony is conflicting and the facts are not so clear as to warrant the court in declaring the plaintiff guilty of contributory negligence as a matter of law. We are all of opinion that the questions of negligence and of contributory negligence were for the jury.

The instruction, of the trial judge on the question of the measure of damages which'is made the subject of the seventh assignment of error calls for consideration and discussion. It is as follows: “Now, gentlemen of the jury, the plaintiff is not only entitled to recover, if entitled to recover at all, for the amount which he would likely earn during the remainder of his life, but is also entitled to recover for any expense or outlay which he may have been put to in the way of payment of money as a direct result of the injuries complained of. He testified that he had paid fifty dollars, we believe, for a doctor bill. We do not know that there is anything else specially that he had paid, but he is taking treatment yet in a certain degree. He is also entitled to compensation for any loss of time which he suffered since the injury was inflicted, as well as for pain, suffering and inconvenience which he has endured and is likely to endure in the future, as a result of the injury.” This instruction as a whole is vague, indefinite and inadequate in the sense of not calling the attention of the jury to the elements of damage which may be considered in arriving at a proper verdict based upon compensation for the injuries actually sustained. It is most important in the trial of this class of cases to carefully instruct the jury as to the true measure of damages that may be considered in arriving at a proper verdict, and the court should of its own motion, give the proper instructions. A jury needs all the assistance a court can give when it undertakes to determine under the rules of law what compensation a person is entitled to receive for injuries sustained. We notice a tendency in the trial of recent cases to give juries a very wide latitude in determining what amount of damáges the injured party is entitled to in causes of this character. This practice is not to be encouraged. It overlooks and disregards the rule that compensation is the true standard by which the law measures such damages. What was said in Collins v. Leafey, 124 Pa. 203; Goodhart v. Railroad Company, 177 Pa. 1, and McLane v. Pittsburgh Railways Company, 230 Pa. 29, should be regarded as of first importance in instructing a jury as to the true measure of damages in this class of cases. That part of the charge in the case at bar in which the jury was instructed that the plaintiff was entitled to recover, if entitled to recover at all, the amount which he would likely earn during the remainder of his life is clearly erroneous. The plantiff was entitled to recover not what he was likely to earn during the remainder of his life, but for the loss of earning power during that period, and this depends upon whether he was permanently disabled or only partially so. Then, again, this instruction loses sight of the important fact that the loss of future earning power is anticipated in a present sum, the income of which the plaintiff will enjoy. In other words, when future payments are anticipated and capitalized in a verdict, the plaintiff is entitled only to their present worth: Goodhart v. Railroad Co., supra. As an illustration of the importance of adhering to this rule, let us assume that under the evidence in the present case the jury would be warranted in finding the plaintiff permanently disabled; that his loss of earning power was $400 a year; and that he had a life expectancy of twenty years; under the instruction complained of the jury would simply multiply the loss of earning power for each year by the number of years of his life expectancy, making a total sum of $8,000. This sum invested at five per cent, would produce an annual income equal to his total loss of earning power. He would then have an income from his investment, the full equivalent of his earning power each year, and in addition would have the principal sum from which the income was derived. This is not the law and such a verdict ignores the rule of just compensation. The rule is that a person totally and permanently disabled by the negligent acts of another is entitled to recover as damages the loss of earning power during the remainder of his life. This does not mean that the earning power of the injured person would remain the same during the entire period of his life expectancy as it was at and before the time of his injury.' State of health, habits of life, character of employment, the increasing disabilities of age, and many other things of like character, which in the course of nature reduce the earning power, must be taken into consideration in determining what is proper compensation for the loss of future earnings. It is the loss of future earning power that is to be compensated in damages, and that loss may be distributed over a period of ten, fifteen or twenty years. As men grow older and less able to work their earning power is not so great, and this fact is to be taken into consideration. When the loss of future earning power is anticipated in a verdict, it should be the exact equivalent, or present worth, of his future loss of earnings during the several years of his life expectancy. It is the duty of the court to so instruct the jury: Wilkinson v. North East Boro., 215 Pa. 486; McLane v. Pittsburgh Railways Company, supra. When there is only a partial loss of earning-power, the jury must determine what that partial loss is under the evidence, the number of years it is likely to continue, and then find the present worth of the amount so ascertained. In the present case it is a question of erroneous instruction, not of inadequacy of the charge, and for this reason there must be a reversal.

The remaining assignments of error are of minor importance, and relate mainly to the rejection and admission of testimony. It will be unnecessary to discuss these assignments at this time. When the case is again tried these matters can be called to the attention, of the trial judge and no doubt will be properly disposed of.

Judgment reversed and a venire facias de novo awarded.