Kappel v. Pub. Serv. Ry. Co.

• Decision Date: 16 January 1929
• Docket Number: No. 56.,56.
• Citation: 144 A. 182
• Parties: KAPPEL v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

144 A. 182

KAPPEL

v. PUBLIC SERVICE RY. CO.

No. 56.

Supreme Court of New Jersey.

Jan. 16, 1929

Appeal from Court of Common Pleas, Union County.

Action by Joseph Kappel, administrator ad prosequendum, against the Public Service Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued May term, 1928, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Henry H. Fryling, of Newark, for appellant.

Orlando H. Dey, of Rahway, for respondent.

GUMMERE, C. J. The present suit was brought by the plaintiff as administrator ad pros, of his wife, Amelia, to recover the pecuniary loss sustained by him and the next of kin of the decedent by reason of her death, which was caused by being struck down and run over by a trolley ear of the defendant company while she was crossing Grand street at its intersection with Oliver street in the city of Rahway. The trial resulted in a verdict in favor of the plaintiff; and the defendant has appealed from the judgment entered thereon.

The first ground upon which counsel for the appellant bases his contention that the judgment under review should be reversed is that the trial court erred in refusing a nonsuit and also in refusing to direct a verdict in favor of the defendant. The contention is that the action of the trial court in refusing these motions was legally erroneous, because it appeared conclusively from the evidence in the case that the plaintiff's decedent, by her own negligence, contributed to the happening of the accident which caused her death; and also because no negligence on the part of the defendant had been shown.

An examination of the testimony returned with the appeal satisfies us that the judicial action now complained of was proper. In that the court erroneously refused to instruct the jury that, in case they should find for the plaintiff, they should, in assessing the damages, ascertain the present value of all future losses, although orally requested to do so by counsel for the defendant at the close of the court's charge. The meaning of the request, although it may have been couched in more formal language, seems to us perfectly clear; and that is, that the jury should ascertain the present value of losses accruing in the future and return a verdict for that sum, and not for the total amount of such future losses. That this is a correct statement of the legal rule applicable in the assessment of damages for future losses is declared by this court in the case of Lambert...