Patton v. P., C. and St. L. Railway Co.

• Citation: 96 Pa. 169
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 22 November 1880
• Parties: Margaret A. Patton et al. <I>versus</I> The Pittsburgh, Cincinnati and St. Louis Railway Company.

96 Pa. 169

Margaret A. Patton et al. versus The Pittsburgh, Cincinnati and St. Louis Railway Company.

Supreme Court of Pennsylvania.

November 8, 1880.

November 22, 1880.

November 8th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 286.

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A. M. Watson and R. B. Parkinson, for plaintiffs in error.— Taking the record as it stood, all the questions raised on the trial were finally disposed of, and the defendant should have moved for a new trial; and having failed therein, the court should have ordered judgment to be entered on the verdict. But we find two reserved questions, irregular as to time and defective in form and substance. The second question decided as reserved was ruled in answer to the defendants' point and an exception sealed, and yet we are now called upon to grapple with it as a question of law ruled against the plaintiffs. If we regard this as a question reserved, then it is submitted, it is not properly reserved, and presents a mixture of law and fact which vitiates it. The court cannot withdraw the decision of the facts from the jury, reserving as a point whether under the evidence in the case the plaintiff is entitled to recover: Clark v. Wilder, 1 Casey 314; Irwin v. Wickersham, Id. 316; Wilson v. Steamboat Tuscarora, Id. 317. Every reservation of a question should place distinctly upon the record what the point is which is reserved and the state of facts out of which it arises: Klett v. Claridge, 7 Casey 107; Wilde v. Trainor, 9 P. F. Smith 439; Campbell v. O'Neill, 14 Id. 290; Commonwealth v. McDowell, 5 Norris 379; Miller v. Bedford, Id. 457; Furgeson v. Wright, 11 P. F. Smith 262. Under our Acts of April 16th 1846, Pamph. L. 353, May 4th 1852, Pamph. L. 574, and April 12th 1858, Pamph. L. 243, the amendment was proper, and as it was a question whether under the Pennsylvania acts the parties of record ought to follow the Virginia statute, that was sufficient to warrant the court in making the amendment in aid of justice, and to preserve the cause of action: Cochran v. Arnold, 8 P. F. Smith 100. STRONG, J., says that amendments of parties "where no change is wrought in the cause of action, is a matter of right, and in a proper case that the court is bound to allow amendments under the Acts of 1852 and 1858": Kaylor v. Schaffner, 12 Harris 489; Druckenmiller v. Young, 3 Casey 97; Kellogg v. Datisman 2 Phila. R. 111; Richter v. Cummings, 10 P. F. Smith 441; Pennsylvania Railroad Company, v. Keller, 17 Id. 300; Bigley v. Bigley, 21 Pitts. Leg. Jour. 99, in which case the record of the trial was not changed. The manner in which the court undertook to reserve questions that were ruled on trial, and especially the second question, involving the law and facts on the merits of the case, after the facts had been submitted to and passed upon by the jury in favor of the plaintiffs, places them in a position to ask to be relieved from a predicament not of their own seeking. And it is submitted that the only way to set them right is to reverse the judgment below, and order judgment to be entered on the verdict.

Hampton & Dalzell, for defendant in error.—Whether the questions of law were properly reserved or not, or an amendment improperly refused, do not seem very material questions, considering the state of the record. It is manifest that the plaintiffs had no action in a Pennsylvania court. If they have a remedy it is in West Virginia, where it is to be be assumed they can obtain such remedy as the justice of their case may demand.

Mr. Justice TRUNKEY delivered the opinion of the court, November 22d 1880.

In answer to the plaintiffs' third point the jury were unqualifiedly instructed that this action can be maintained if the statute in force in West Virginia, relating to cases of death caused by negligence, is similiar to or substantially the same as the statute on the same subject in Pennsylvania. The only statute of West Virginia given in evidence, is the fifth and sixth sections of an act relating to actions where death of a person was caused by wrongful act, neglect or default, which provides, among other things, that "every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties, and in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate." What the law provides in relation to said distribution was not proved. The learned judge in the charge said it was his impression that the statute in West Virginia was so different from the statute in this state that the action would not lie; but instructed the jury that the fact of Mr. Patton having been killed in West Virginia made no difference so far as they were concerned. At the close of the charge he adds these words: "The question of law, as to the effect of the statute of West Virginia, we will reserve for further consideration." The verdict was for the plaintiffs for $4900, "subject to the opinion of the court on a question of law reserved." In an opinion subsequently filed two questions of law are considered as having been reserved, 1. Can the plaintiffs recover under the West Virginia statute, and 2. Is there sufficient evidence of negligence to justify a verdict against the defendant?" Neither of these are shown by the record. Of the first it is said, "I do not think the statutes are substantially alike. In...