Robb v. Niles-Bement-Pond Co. , 269 Pa. 298 ( 1921 )

Opinion by

Mr. Justice Walling,

This action is for personal injuries. Defendant’s factory is located at Twenty-first and Callowhill streets, Philadelphia, and plaintiff, on August 10, 1917, while carrying ice into the factory, slipped and fell, causing a serious and permanent injury to his left hand. The accident happened at noon and the evidence for plaintiff indicates that his fall was caused by stepping into a pool of oil, about two feet in diameter, which had been suffered to remain on the cement floor for five hours, at a place near the doorway through which defendant’s servant directed plaintiff to take the ice. It does not clearly appear what caused the pool of oil; the most likely theory seems to be that it dropped from the crane above during the night. It is not shown that such a pool had ever collected there before. Plaintiff delivered the ice daily and was familiar with the place, but testified that the light was not sufficient to enable him to see the oil before stepping into it, while the evidence for defendant was strong to the contrary. The trial judge submitted the questions of negligence and contributory negligence to the jury, who found for plaintiff; judgment having been entered upon the verdict, defendant brought this appeal.

Defendant was plaintiff’s customer for the ice ahd it was the latter’s duty to go upon the former’s premises to deliver the same; hence, defendant was required to use reasonable care to keep its premises in such condition as not to expose plaintiff to unnecessary danger: Bloomer v. Snellenburg, 221 Pa. 25; Connelly v. Faith, 190 Pa. 553; Clopp v. Mear, 134 Pa. 203; Polenske v. Lit Brothers, 18 Pa. Superior Ct. 474. In 29 Cyc. 453, the rule is stated, “The owner or occupant of premises who induces others to come upon it by invitation express or implied owes to them the duty of using reasonable or ordinary care to keep the premises in a safe and suitable condition, so that they will not be unnecessarily or unreasonably exposed to danger.” See also Market Co. v. Clagett, 19 Appeal Cases Dist. of Columbia 12. Whether the oil caused the accident and, if so, whether defendant was at fault in not observing and removing it prior thereto, were questions for the jury.

If by the use of ordinary care plaintiff could have seen and avoided the pool of oil he could not recover; but that depends on the condition of the light and other circumstances and was also for the jury. Plaintiff was carrying a hundred pounds of ice, with no reason to anticipate special peril, and, coming in from the bright sunlight, his first glance might not be entirely distinct, and it does not appear just how observable the pool of oil was. The presumption is that he used due care arid the proof does not clearly establish the contrary.

As part of plaintiff’s hand was amputated, the injury is necessarily permanent and, under the proof, reduces his earning power about one-half. He is and for many years has been engaged in a small retail ice business, in which, prior to the accident, he required a helper only one-half of the year, while since the accident he require^ one the entire year at a salary of $60 a month. This shows a direct loss of earning power of at least $350 a year; and, considering the permanent character of both the injury and his business, justifies a recovery for loss of future earnings. The amount a plaintiff is bona fide compelled to pay another to do what he could have done but for the injury is always recoverable as a loss of earning power. This principle is clearly stated by the present Chief Justice in McGonnell v. Rys. Co., 234 Pa. 396, 400, as follows: “.The first assignment complains of evidence introduced to show wages paid by the plaintiff to servants at her new hotel, who were engaged to do work which prior to the accident, at her old place of business, she had been able to accomplish herself. Testimony showing wages paid to a servant employed to perform necessary work for a plaintiff, which before her injury she did herself, is always admissible (Willis v. Traction Co., 189 Pa. 430); and proof relied upon to show diminution of earning power need not be clear and indubitable (Simpson v. Railroad Co., 210 Pa. 101, 104).” To like import see Olin v. Bradford, 24 Pa. Superior Ct. 7. The rule seems to be the same in other jurisdictions: “Where a party is engaged in a business to which he gives his personal attention, and finds it necessary to engage assistants to perform the services for which he is disabled, there may be a recovery of the reasonable amounts so expended”: Watson on Damages for Personal Injuries, section 544; Galveston City Ry. Co. v. Chapman (Tex.), 80 S. W. 856; Blackman v. Gardiner Bridge, 75 Me. 214. The jury had in addition the plaintiff’s age, health, expectancy and business all before them, so the contention that there could be no recovery for loss of future earnings cannot be sustained. On defendant’s objection the trial judge excluded evidence as to plaintiff’s earnings in his business, but as he took no appeal the accuracy of such ruling is not before us.

The verdict was for $7,000. This the court below thought excessive and very properly (Hollinger v. York Rys. Co., 225 Pa, 419) made an order granting a new trial unless plaintiff remitted all of the verdict in excess of $5,000. This plaintiff did, and pending the appeal has filed a remittitur of all of the judgment in excess of that amount. So much of the court’s order as directed judgment to be entered for the larger sum provided the smaller was not paid, therefore, becomes immaterial. Doubtless the terms imposed upon defendant would have been omitted from the order had it not been made prior to our decision in Ralston v. Phila. R. T. Co., 267 Pa. 278.

The assignments of error are overruled and the judgment is affirmed for the stipulated amount of $5,000.