Mansfield Coal & Coke Co. v. McEnery

• Decision Date: 17 November 1879
• Citation: 91 Pa. 185
• Parties: Mansfield Coal and Coke Co. v. McEnery.
• Court: Pennsylvania Supreme Court

91 Pa. 185

Mansfield Coal and Coke Co. v. McEnery.

Supreme Court of Pennsylvania.

November 17, 1879

October 7, 1879

1. The measure of damages in cases arising under the Acts of April 15th 1851 and April 26th 1855, authorizing the widow and children of a decedent, whose death has been caused by negligence, to recover damages, from the person or persons whose negligence was the cause of the death, is the pecuniary loss suffered by the parties entitled to the sum recovered without any solatium for distress of mind; and that loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and which would have gone for the benefit of his children, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure. Pennsylvania Railroad Co. v Butler, 7 P. F. Smith 335, followed.

2. It was error in the court to charge the jury that in estimating such damages " they might also consider the opportunities of acquiring wealth or fortune by change of circumstances in life."

3. Where the deceased lost his life by the fall of defendants' bridge, the defendants are not liable if they show they exercised ordinary care in selecting an experienced builder to construct the bridge, and that the builder had the supervision and control of the work, unless it appears that the defendants had knowledge of the defects from which the accident arose, and neglected to repair the same.

4. It seems, it is of no consequence that the builder was employed by the day, as the manner of his compensation does not affect the question.

5. The bridge was unsafe and dangerous for months prior to the accident; there was no evidence that the defendants knew of its condition, and the deceased, although he must have known its condition, did not notify them, and continued in their employment. Held, that he was guilty of contributory negligence, and plaintiffs could not recover.

6. It was offered to be shown that the deceased was careless as a driver; but the evidence did not refer to a time near the accident. Held, that this evidence was properly rejected.

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

GREEN J., absent.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 66.

Case by Mary McEnery and children, the widow and children of John McEnery, deceased, against the Mansfield Coal and Coke Company, to recover damages under the Acts of April 15th 1851, Pamph. L. 674, and April 26th 1855, Pamph. L. 309, for the death of said John McEnery, which it was alleged was caused by the negligence of said defendants.

At the trial it appeared that the deceased was employed by the company to drive a mule drawing coal cars. In the performance of this duty he daily crossed several times a bridge of defendants and while thus passing over it in 1877, it fell and the deceased was killed. The plaintiffs contended that the defendants were liable, because the accident was caused by defects arising from the original construction of the bridge. It was shown that it was built in 1874 by Henry Willard, a carpenter and experienced bridge-builder, who was employed by the company to construct the bridge, and the construction of which was under his supervision and control and and that he was paid by the day. There was no evidence that the company did not exercise care in his selection, neither was there any evidence to show that the company knew of the dangerous character of the bridge, or that the deceased had ever notified them that it was dangerous. On behalf of the plaintiffs, several witnesses testified that the bridge was unsafe and dangerous for several months prior to the accident; that it vibrated and shook whenever a wagon passed over it; that it swayed at one time at least two feet; the bridge swagged; it shook so that horses were afraid to cross it; it waved up and down the stream; caused the horses trouble to keep their feet. Plaintiffs also gave evidence to show that the foundations were not sufficiently strong and that the bridge was otherwise defectively constructed.

For the defence it was offered to be shown that deceased was a fast and careless driver, which the court rejected.

The following were among the points submitted by the plaintiffs with the answers of the court, Kirkpatrick, J.

3d. If the jury believe, from the evidence in the cause that the death of John McEnery was the result of an imperfect or insufficient foundation for the erection of the structure on which the defendant company had located their railway, it is such negligence as would entitle the plaintiffs to recover in this action, unless the jury should find from the evidence that the deceased, by negligence, contributed to his own death.

Ans. " Affirmed."

5th. The damages which may be allowed in this action may be summed up, as the pecuniary value of the life of John McEnery to his family, including wages and all such service as a father could render of pecuniary value to the wife and children, whilst the jury are at liberty to take into consideration questions of health, liability to accident or death; they may also consider the opportunities of acquiring wealth or fortune by change of circumstances in life.

Ans. " Affirmed."

Among the points submitted by the defendants were the following, which were refused:

1st. The undisputed evidence in this case, showing that the bridge or trestle was built under the supervision and direction of Henry Willard, without the intervention of any officer of the company, and there being no evidence to show any want of care in the selection of said Willard, the plaintiffs cannot recover.

14th. If the jury find that the bridge was constructed under the supervision and inspection of Willard, and that he was a competent bridge-builder, then even should they also find that the bridge shook and swayed in going over it, and that it became dangerous to go upon it with loaded coal wagons, this would not entitle the plaintiffs to recover unless knowledge was brought home to the proper officers of the defendant company of this fact, and the company neglected to repair the same.

The verdict was for plaintiffs for $5000, and after judgment defendants took this writ and alleged that the court erred (9th assignment), in the exclusion of the above testimony (1st and 5th assignments), the affirmance of plaintiffs' points, and (2d and 3d assignments), the refusal of defendants' points.

J. G. MacConnell and D. T. Watson, for plaintiffs in error.--The court should have given definite instructions to the jury as to the true measure of damages, which is the pecuniary value of the deceased's life: Pennsylvania Railroad v. Vandever, 12 Casey 304. By affirming the 5th point of plaintiffs the court laid down a rule which is boundless and at variance with the decisions of this court: Pennsylvania Railroad Co. v. Zebe, 9 Casey 330; Pennsylvania Railroad Co. v. Butler, 7 P. F. Smith 338; Pennsylvania Railroad Co. v. Keller, 17 Id. 308; Pennsylvania Railroad Co. v. Henderson, 1 Id. 323; Huntingdon & Broad Top Railroad Co. v. Decker, 3 Norris 419. If the company exercised ordinary care in the selection of a person to build the bridge they are not liable for any negligence on his part.

The burden of proof was not on the company to show they had exercised due care and skill in the selection of the contractor or bridge-builder to erect the bridge, but it was obligatory upon the plaintiffs to show want of due care in the selection. This they might have done by showing the incompetence of the bridgebuilder: Painter v. Pittsburgh, 10 Wright 221; Ardesco Oil Co. v. Gilson, 13 P. F. Smith 150; Butler v. Hunter, 7 Hurlst. & N. 826; Wonder v. Baltimore and Ohio Railroad Co., 32 Md. 418Albro v. Agawam Canal Co., 6 Cushing 77; Gilman v. Eastern Railroad Co., 10 Allen 233; Wright v. New York Central Railroad Co. 25 N.Y. 562; Pittsburgh, Fort Wayne & Chicago Railway Co. v. Ruby, 38 Ind. 311; Feltham v. England, 2 Q. B. 33; Frazier v. Pennsylvania Railroad Co., 2 Wright 110. See also Sizer v. Syracuse, Binghampton & New York Railroad Co., 7 Lansing 67; Union Pacific Railway Co. v. Young, 8 Kans. 658; Harper v. Indianapolis & St. Louis Railroad Co., 47 Mo. 567.

It was competent for the defence to show that the deceased was a fast and careless driver: Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 343.

E. Edgar Galbreth, R. M. Gibson and Thomas M. Marsha??, for defendants in error.--Whilst the accidents and possibilities of the future might lessen or depreciate the pecuniary estimate of the value of McEnery's life, and were proper subjects for the consideration of the jury, the possibility and the probability of an active, intelligent and industrious young man of twenty-seven years of age bettering his condition was not beyond the just range of inquiry. That we were right appears to us free from doubt. We fail to find a line or letter in any decision upon this statute which debars this inquiry. If the " " " uncertainties" of the future are to be weighed and " cast into the balance" against the widow and orphan, in the estimate of the pecuniary value of the deceased husband and father, surely the possibility of that improvement in condition of life which is the natural and ordinary progress of the industrious, energetic and frugal, may finally be considered in the estimate of the pecuniary value of human life: Pennsylvania Railroad Co. v. Butler, supra; Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396; Pennsylvania Railroad Co. v. Dale, 26 Id. 49; Catawissa Railroad Co. v. Armstrong, 2 Id. 286.

If the company had employed a " well-known and reputable...