Friedsam v. Pittsburgh, Butler & New Castle Railway Co. , 1915 Pa. Super. LEXIS 226 ( 1915 )

Opinion by

Henderson, J.,

All of the assignments of error relate to the charge of the court. The first six contain excerpts with respect to which complaint is made that the court expressed an opinion as to the extent of the plaintiff’s injuries and his physical condition at the time of the trial which was prejudicial to him and had a tendency to influence the jury to bring in a verdict for a less amount than the evidence warranted. When these parts of the charge are read with their appropriate context we are not persuaded that the court exceeded the privilege accorded to the trial judge in expressing his view as to the weight to be given to the testimony of a witness where the question is fully committed to the jury notwithstanding the view entertained by the court. It. is to be observed that the court’s remark that the plaintiff appeared to be at the time of the trial able to conduct his own affairs and that if so there ought not to be an allowance for loss of future earning power was accompanied with the qualification: “unless you are satisfied that he is incapacitated.” The jury could only have understood this to mean that if the plaintiff were incapacitated at that time and would probably so continue for any period he was to be compensated for such incapacity. And in the second assignment the language of the court was “That the court’s expression is simply that of an opinion of the court not to bind in any way of coerce or control this jury by simply saying that the court assumes from the appearance of this plaintiff and from his manner and all the testimony that has been adduced here that he at present appears to be able to conduct his business normally.” There is nothing in the case to support the assumption that the court might not with propriety make such a remark in a case where the plaintiff was seeking to recover damages for continuing disability resulting from his accident and where there was evidence tending to show that the physical difficulty of which he complained had a different origin. The jury was specifically advised that they were not to be bound in any way or controlled by the view expressed by the court. It cannot be seriously contended that recovery should be had for diminished earning ability if there was no evidence that it existed or probably would exist in the future, and the caution of the court to the jury to guard against allowing compensation for time beyond which the plaintiff had ceased to be incapacitated was not inappropriate; especially when coupled immediately with the instruction that if it was made to appear at the time of the trial that he was incapacitated they should allow him compensation for that injury. We are unable to see that the reference in the charge to the testimony of the medical experts did the plaintiff any harm. Much of the trial was devoted to a consideration of the cause of the symptoms of which the plaintiff complained at the trial and to the inquiry whether or not his injury was permanent. The attention of the jury was drawn to the relevant testimony in such a manner as to leave the whole question open to determination by the jury. The profits of the business could not be taken account of as a measure of earning capacity: Goodhart v. Railroad, 177 Pa. 1; and we do not find competent evidence of loss of future earning power which could be made the basis of a definite finding in damages. The plaintiff was engaged in business for himself as a produce dealer and had been so engaged for ten years. The impairment of his ability to manage his business was a proper subject of compensation, but he was not entitled in addition to that to damages for the loss of ability as a salesman, for he had not been engaged in that business for many years. To have permitted him to recover for loss of earning power in that capacity as well as to have compensated him for impairment of his ability to prosecute the business in which he was engaged would have permitted a recovery on a basis not recognized by any authority which has been brought to our attention. The opinion of the trial judge on the motion for a new trial covers the propositions presented by the learned counsel for the appellant and answers them at length. We do not find anything in the record which requires a reversal of the judgment.

Judgment affirmed.