Pauza v. Lehigh Valley Coal Co.
| Decision Date | 17 May 1911 |
| Docket Number | 19 |
| Citation | 80 A. 1126,231 Pa. 577 |
| Parties | Pauza v. Lehigh Valley Coal Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 13, 1911
Appeal, No. 19, Jan. T., 1911, by defendant, from judgment of C.P. Schuylkill Co., Nov. T., 1906, No. 67, on verdict for plaintiff in case of Paul Pauza v. Lehigh Valley Coal Company. Reversed.
Trespass to recover damages for personal injuries. Before BRUMM, J. See Reeder v. Lehigh Valley Coal Co., ante, p. 563.
The opinion of the Supreme Court states the case.
Verdict and judgment for plaintiff for $7,250. Defendant appealed.
Errors assigned were various rulings on evidence and instructions.
Judgment reversed and a venire facias de novo awarded.
Daniel W. Kaercher, with him Samuel H. Kaercher, and Frank W Wheaton, for appellant.
A. D. Knittle, for appellee.
Before FELL, C.J., MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.
We have concluded that there must be a reversal in this case on other grounds and do not think it necessary to decide whether the court erred in admitting the mortality tables after the case was closed and arguments to the jury made. When the case is again tried the mortality tables may be offered in evidence in a regular way and at a proper time. When such tables are introduced, it is the duty of the trial judge to carefully guard the effect to be given them by the jury. Unless this is done in a very pointed and direct way by the court, the jury may be misled as to the value and weight to be attached to this character of evidence. The important fact for the jury to determine is the life expectancy of the injured party. This depends more upon his prior state of health, character and habits, perils of employment, personal characteristics, and other circumstances surrounding his own life, than it does upon the average expectancy of other lives based upon mortality tables. The trial judge should instruct the jury that these tables are not to be accepted as establishing the expectancy of the life of the injured party, but only as an aid in arriving at what that expectancy might be in view of all the conditions surrounding the particular life in question. It is not sufficient to instruct the jury that the tables are some aid but not conclusive in determining the life expectancy of the injured party. All the circumstances affecting the probable duration of life disclosed by the evidence should be called to the attention of the jury in order that they may have an intelligent understanding of what their duty is in determining the life expectancy in the particular case submitted to them. The duty of a trial judge in treating evidence of this character is pointed out in Steinbrunner v. Railway Co., 146 Pa. 504; Campbell v. York, 172 Pa. 205; Kerrigan v. Railroad Co., 194 Pa. 98; Seifred v. Railroad Co., 206 Pa. 399.
We think the learned trial judge erred in not striking out the testimony of the plaintiff called to our attention by the third assignment of error. This witness testified in chief that the keg of powder carried by James Smith was exploded by coming in contact with the trolley wire. On cross-examination he admitted that he did not know James Smith but that he had afterwards learned from other parties that it was James Smith who carried the keg of powder that was exploded. This was clearly hearsay evidence and if these facts had appeared when it was offered in chief, it would have been the duty of the court to exclude it. When these facts were subsequently disclosed it was equally his duty to strike it out when the motion was made to do so. It was error to refuse this motion.
The instruction complained of in the fourth assignment is clearly erroneous. This instruction was based upon a wrong theory as to the duty of appellant in installing and maintaining an electric haulage system for the operation of its mines. The trial judge instructed the jury that, "it is the province of this jury to use your judgment, as reasonable men, as to what is a proper installation and construction of a dangerous appliance, under all the circumstances and conditions as testified to you, in that tunnel." This instruction ignored every proper test of the measure of duty imposed on an employer in such cases and left it to the jury to use their best judgment in determining whether the electric haulage system had been properly installed. This is not the law. The employer is bound to furnish machinery and appliances reasonably safe for the use intended. Reasonable safety within the meaning of the law means that the machinery and appliances furnished must be of the usual and ordinary kind adopted by those in the same kind of business. An employer is not even bound to provide the safest machinery or the newest and most approved appliances. He has performed his duty in this respect when he furnishes those of the ordinary character in...
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