Smith v. Pennsylvania Railroad ( 1914 )

Opinion by

Mr. Justice Elkin,

This is an action in trespass to recover damages for personal injuries alleged to have been sustained as a result of the negligence charged against the defendant. It was clearly a case for the jury and the only question to be considered here is whether it was properly submitted. We have concluded that the first, second and fifth assignments of error must be sustained. In his instructions to the jury the learned trial judge among other things said: “There is no rule of law by which the amount of damages for injuries sustained in actions of this kind is measured; that is left to the jury, and counsel have very properly said that if the plaintiff is entitled to recover in this action he is entitled to recover such damages as would compensate him for the pain and suffering he has undergone and .is likely to undergo during the natural,extent of.his life. In addition to that, he is entitled to recover compensation for the lessened power of his earning capacity that he now possesses as compared with what it was before he was thus afflicted, and what this is will be for the jury to determine. We can give you no yardstick, no mark, no rule, by which you can measure, but it is for you in your own good judgment, hemmed in by the testimony and advised by the testimony, to measure what such compensation should be, if he be entitled to recover anything.” This instruction in effect left the question of damages to the jury without any legal chart to guide their minds to a correct conclusion. It emphasized the element of pain and suffering more than the expenses incurred and the loss of earning power resulting from the injuries. The proper practice is to prove what expenses were actually incurred, and what the loss of earning power was up to the time of trial, or what they may be in the future, depending upon the injuries; and in addition to these elements of damage the jury may take into consideration the question of pain and suffering. The instruction complained of also left out of consideration the present worth of the loss of future earning power when capitalized in a present verdict. Inasmuch as the case is to be tried again we call attention to what was said in the following cases as a guide to all parties interested in the trial: Goodhart v. Penna. R. R. Co., 177 Pa. 1; Wilkinson v. North East Boro., 215 Pa. 486; McLane v. Railways Company, 230 Pa. 29; Beck v. Railroad Company, 233 Pa. 344; Reitler v. Penna. R. R. Co., 238 Pa. 1.

What has been said about the first assignment applies with equal force to the second; and thé fifth is open to the objection that it leaves out of account the present worth of the loss of future earnings.

The third and fourth assignments are without substantial merit.

Judgment reversed and a venire facias de novo awarded.