Connor v. Electric Traction Co. , 173 Pa. 602 ( 1896 )

Opinion by

Mr. Chief Justice Sterrett,

It is evident from an examination of the testimony in this case that it involved questions of fact which were exclusively for the determination of the jury. They were fairly submitted to them by the learned trial judge with adequate and substantially correct instructions ; and, by necessary implication their verdict in favor of the plaintiff establishes the controlling facts upon which she relied, viz: that the negligence of defendant company’s motorman was the proximate cause of her husband’s death, and that he was not guilty of any negligence which contributed thereto.

The only requests for instruction were the four presented by the defendant, the first of which was affirmed, and the others were rightly refused. In affirming the first the jury were instructed, in the language thereof, thus: “ According to the city ordinance, approved March 1,1870, defendant’s car had the right of way if it was within forty feet of the crossing of the tracks at Eleventh and Filbert streets when the car, of which John Con-nor was the driver, came to that crossing. The motorman of defendant’s car, under such circumstances, had a right to assume that Connor would comply with the ordinance, and to act on that assumption until he saw, or with reasonable diligence ought to have seen that Connor was actually proceeding in disregard of those instructions.” In view of this instruction, the verdict impliedly exonerates plaintiff’s husband, John Connor, from the charge of having, in violation of the ordinance, encroached on the right of way to which it was claimed defendant company’s car was entitled at the time of the collision. This subject is also referred to in the second, third and seventh specifications of error. In substance, the defendant’s contention is that the .ordinance as to right of way is conclusive of the question of negligence; but that position is untenable. Failure to comply with the provisions of such an ordinance is not necessarily negligence per se; it is merely evidence of negligence : Lederman v. Pennsylvania Railroad Co., 165 Pa. 118, and cases there cited.

Considered in connection with other parts of the charge, there is no error in the excerpts therefrom recited in the second, and generally complained of in the third specification; nor is there any error in the instruction quoted in the fifth specification. Neither of these requires any further notice.

The fourth specification, alleging error “ in failing to charge and instruct the jury in such manner as to explain to them the rules respecting concurrent negligence,” is unwarranted as well as unfair to the learned trial judge. On the subject referred to, he instructed the jury thus : “In all these,cases,.the question of negligence is the predominating question. Before anybody can recover in cases of this character, you must be satisfied from the evidence that the injury was caused by the negligence of the defendant, and that the conduct of the plaintiff did not contribute to the injury. If, to use the ordinary expression, ‘both sides were at fault,’ you cannot give a verdict for the plaintiff. You must be satisfied, as I say, that it was the negligence of the defendant which was not contributed to by the action of the plaintiff.” No jury of average intelligence, so instructed, could fail to understand that if any negligence of plaintiff’s husband contributed to his injury, there could be no recovery.

The sixth specification, — charging error “in failing to lay down to the jury any proper measure of damages in the law ”— is not sustained by the record. After referring to the fact that, at common law, personal actions died with the person, and to the change effected therein by statutory enactment in this state, the learned trial judge said: “ the widow now has a right to bring suit for the pecuniary loss.” In the same connection, referring to the amount, etc., he said, “ it ought to be a reasonabl& compensation; ” and then he proceeded to pointedly caution the jury in regard to the danger, as well as the impropriety, of rendering an excessive verdict. It does not appear that there was any difference of opinion between counsel themselves, or between them and the court in relation to the proper measure of damages in such cases as this; nor is there any reason why there should have been any difference of opinion on the subject. The testimony introduced by the plaintiff, on the subject of damages, was directed exclusively to the pecuniary loss sustained by the plaintiff in consequence of the untimely death of her husband. It was not only strictly relevant, but it was quite sufficient to warrant the amount named in the verdict. It is not questioned that all that was said by the learned judge, in relation to the measure of damages, was strictly correct, but it is urged that he did not say enough; that he should have elaborated the statutory measure of damages, etc. A sufficient answer to that, as well as the alleged failure of the court to explain “ the rules respecting concurrent negligence,” heretofore considered, is that instructions on these subjects were not asked. It was the defendant’s right to request instructions on any pertinent subject; but, while, as we have seen, requests for charge on other matters were submitted, it was not deemed of sufficient importance to present any on the subject of contributory negligence, or the proper measure of damages. In the circumstances disclosed by this record, the propriety of complaining, that the court did not say to the jury something that it was not requested to say, is at least questionable.

There is nothing in any of the specifications that requires further discussion. Neither of them is sustained.

Judgment affirmed.