Hobel v. Mahoning & Shenango Railway & Light Co.

Opinion by

Mr. Justice Potter,

Upon the question of the negligence of the defendant and the contributory negligence of the plaintiff, there was evidence sufficient to take this case to the jury. The accident happened at a right-angled crossing of the tracks of the street railway of the defendant in the city of New Castle, and there is testimony upon the part of the plaintiff tending to show that when the horses were right at or upon the track, the car which came upon him was 150 feet away. Under these circumstances the court .could not properly have said, as matter of law, that the plaintiff was guilty of contributory negligence in attempting to cross the street railway tracks. The first and second assignments therefore, which allege that the court below erred in refusing binding instructions, and in not entering judgment non obstante veredicto for the defendant, are dismissed. The trial judge did err, we think, in admitting testimony against defendant’s objection, as to the earning capacity of the plaintiff at a period seven years before the accident, and while employed in an entirely different capacity. The time was too remote from the date of the accident, and the circumstances were very different. For these reasons we sustain the third assignment. There are other specifications which allege error in the admission of testimony as to the measure of damages sustained by the plaintiff, and these assignments we think must be sustained.

Plaintiff was engaged in the production and sale of milk, and in farming. At the trial no proof was offered of the amount of his earnings in his business, or as to the loss of earnings by reason of the accident. As we understand the evidence, he showed merely his gross receipts from the sale of milk, being the sum of $7.00 per day; and also his gross receipts from the sale of other produce of his farm. These amounts did not of course represent his net earnings, for they would not appear until the necessary costs and expenses had been deducted. The evidence does not show that any such deduction was made. The result of his testimony as to the amount of his damages must, therefore, have tended to mislead the jury. The instructions asked for in behalf of defendant, in the fifth and sixth points submitted for charge, should have been affirmed.

In the preparation of his paper-book, counsel for appellant lost sight of the requirements of rule 31; for several of his specifications of error which quote testimony admitted, contain no reference to the pages of the paper-book where the matter may be found in its regular order in the printed evidence. This would be sufficient ground for ignoring these assignments. In a large record such as this, the failure of counsel to observe the rule entails considerable extra labor upon this court.

Owing to the failure to show plaintiff’s net earnings, the judgment is reversed, with a venire facias de novo.