Bockelcamp v. Lackawanna & W. V. R. Co.

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE MOSCHZISKER:
• Citation: Bockelcamp v. Lackawanna & W. V. R. Co., 232 Pa. 66, 81 A. 93 (Pa. 1911)
• Decision Date: 23 May 1911
• Docket Number: 28
• Parties: Bockelcamp v. Lackawanna & Wyoming Valley Railroad Company, Appellant

81 A. 93

232 Pa. 66

Bockelcamp v. Lackawanna & Wyoming Valley Railroad Company, Appellant

No. 28

Supreme Court of Pennsylvania

May 23, 1911

Argued February 22, 1911

Appeal, No. 28, Jan. T., 1911, by defendant, from judgment of C.P. Lackawanna Co., March T., 1908, No. 1,064, on verdict for plaintiff in case of John Bockelcamp v. Lackawanna &amp Wyoming Valley Railroad Company. Reversed.

Trespass to recover damages for personal injuries. Before O'NEILL J.

At the trial it appeared that plaintiff, a man fifty-two years old, was injured on August 26, 1906, while alighting from a train at South Scranton station of defendant company.

At the trial the time book of the Delaware, Lackawanna & Western Railway Company, the plaintiff's employer, was admitted in evidence under the following objection:

Mr. Torrey: Objected to as not properly proven. Our understanding and information is that the time was differently kept on Sundays from what it was on other days and we think it important that the person who kept the time or the time slips should be produced and not secondary evidence.

Mr. O'Malley: This is offered for the purpose of corroborating the plaintiff, Bockelcamp, and the witness, Berry.

Mr. Torrey: Objected to as incompetent and not the best evidence.

The Court: Objection overruled. Exception noted for defendant at whose request a bill is sealed. [2]

Mr. O'Malley: State to the jury how many hours your time book shows were taken in for Mr. Bockelcamp on that date.

"A. Seventeen hours on the 26th of August."

The court charged in part as follows:

[Inasmuch as it is testified that this is a permanent injury and it is not contradicted, you can also consider then what will be the loss of his earning capacity, whether it is totally destroyed or partially destroyed. You must also consider whether or not he will endure pain and suffering for the remainder of his life by reason of this injury and to what extent, because it does not necessarily follow, even though he may endure pain, that it will be the same degree of pain at all times or continuously, it may appear for a time and then it may disappear. It is said that there is no way of measuring pain. This is true. Nevertheless the law allows the jury to take that into consideration in rendering compensation to one injured in this manner and under these circumstances. You may consider as a circumstance in the case the number of years that the plaintiff is likely to live in measuring the loss of his earning capacity. Upon this point evidence has been introduced of what is known as the expectancy of life tables, sometimes called the Carlisle tables, and under these tables the expectancy of life of a man of the plaintiff's age would be nineteen years and a half. You are not, of course, to assume that he will live these nineteen years, he may live much less, he may live possibly longer, yet you are permitted to use this table in assisting you in arriving at a conclusion in ascertaining the amount of damage which he may sustain by the loss of his earning capacity permanently.]

It is in evidence in this case that while the plaintiff earned $75.00 or $80.00 a month prior to his injury and that he was employed as a machinist, since his injury he has entered into employment with the same company, not exactly in the same capacity, but more in the nature of a foreman or superintendent over others engaged in the same department in which he was previously engaged, and that he received the same amount of money or something more; the scale of wages in that class of labor having increased he received the benefit of it in his monthly wages. You must consider this circumstance as an element in the case in measuring the loss of his earning capacity. His trade or occupation before the injury is the one which should guide you primarily, which would be the occupation he probably would have continued in if he had not met with this injury. He may continue in the same employment he is now in or he may at any time lose it, and then if he was to seek employment in the same occupation which he had heretofore followed, if you believe his story and the story of the physicians as to his injury, he would not be as fit to perform the duties of a machinist as he had been before the time of this injury. It is a very difficult question for jurors to decide and is in the nature of a guess. [10]

Verdict for plaintiff for $15,000, upon which judgment was entered for $6,000, all above that amount having been remitted. Defendant appealed.

Errors assigned were various rulings and instructions as shown above and indicated in the opinion of the Supreme Court.

For reasons before indicated, the second, ninth and tenth assignments are sustained, and the judgment is reversed with a venire facias de novo.

H. B. Gill and James S. Torrey, of Welles & Torrey, for appellant.

Everett Warren, of Warren, Knapp & O'Malley, with him Houck & Benjamin, for appellee.

Before MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

John Bockelcamp was seriously injured while alighting from a train on the defendant's road. The train in question consisted of two cars and was operated by a third rail electric system. The case was submitted to the jury, and the plaintiff recovered a large verdict, upon which, after a substantial cut, the court below entered the judgment from which this appeal has been taken.

The plaintiff contended that the train had stopped at a regular station for discharging passengers and that he had immediately attempted to alight, but that, without giving him sufficient time, the train started while he was in the very act of stepping to the ground. The defendant claims that the plaintiff carelessly stepped from a moving train before it had come to a stop. The evidence was conflicting and the case was for the jury; but the assignments question the propriety of certain rulings of the trial judge and the manner in which the issues were submitted.

The second specification complains of the admission in evidence of a time book belonging to the plaintiff's employers purporting to show the hours that the plaintiff had worked on the day of the accident. Since it was not a book of original entries and the absence of the time slips from which it was made up was not sufficiently accounted for or the witnesses who made the entries produced, the evidence should not have been admitted. While we sustain this assignment, if it were the only error in the case, we should not consider it of sufficient importance to require a reversal.

The ninth and tenth specifications relate to the charge concerning the plaintiff's loss of earning capacity. The trial judge, inter alia, said: "Inasmuch as it is testified that this is a permanent injury and it is not contradicted, you can consider then what would be the loss of his earning capacity, whether it is totally destroyed or partially destroyed." The permanent destruction of earning capacity was again referred to, and, after calling attention to the facts in the case concerning the employment of the plaintiff before and...