Pennsylvania Railroad Co. v. Butler

• Decision Date: 17 February 1868
• Parties: The Pennsylvania Railroad Company <I>versus</I> Butler.
• Court: Pennsylvania Supreme Court

57 Pa. 335

The Pennsylvania Railroad Company versus Butler.

Supreme Court of Pennsylvania.

January 29, 1868.

February 17, 1868.

January 29th 1868.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. STRONG, J., at Nisi Prius

Error to the Court of Common Pleas of Snyder county.

COPYRIGHT MATERIAL OMITTED

G. F. Miller and T. Cuyler, for plaintiffs in error.—The 1st assignment of error was abandoned on the argument. As to the 2d assignment of error, they cited Pennsylvania Railroad v. McCloskey, 11 Harris 530; Same v. Zebe, 9 Casey 318; Same v. Vandever, 12 Id. 298; Same v. Kelly, 7 Id. 372; Same v. Henderson, 1 P. F. Smith 315. The effect of the evidence in the 3d assignment of error was not removed by withdrawing it from the jury in the charge.

D. W. Woods, for defendants in error.—When the charge of the court and the answers to the points taken altogether, present the law correctly, the judgment will be affirmed: Arbuckle & Thompson v. Colburn, 1 Wright 170; Pierce v. Cloud, 6 Id. 102; Lycoming Insurance Co. v. Schreffler, Id. 188; Oakland Railroad Co. v. Fielding, 12 Id. 320. On the subject of damages, they cited Pennsylvania Railroad Co. v. Zebe, Same v. McCloskey, Same v. Henderson, supra.

The opinion of the court was delivered, February 17th 1868, by SHARSWOOD, J.

This was an action by the defendants below as guardians of the minor children of William Butler, deceased, against the plaintiffs in error, to recover damages on account of the death of their father, caused as it was alleged by negligence.

The 1st error assigned has been properly abandoned, as it is too well settled to be now controverted, that a stipulation by a common carrier that he shall not be liable for damages, does not relieve him from responsibility for actual negligence by himself or servants. Goldey v. Pennsylvania Railroad Co., 6 Casey 242; Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315. The charge was as favorable to the plaintiffs in error on this point as they could have asked.

The 2d error assigned is, that the learned judge erred in his instructions to the jury as to the measure of damages. These instructions were as follows: "It would perhaps be a fair way to estimate the amount of damages, to take the probable amount of his (deceased's) accumulations for the time he might reasonably have been expected to live, and find that for the plaintiff. This, as we said, may be a fair way of calculating the damages sustained; but as it has been said in Pennsylvania Railroad Co. v. McCloskey, 11 Harris 526, if you can find a better rule you are at liberty to adopt it. In estimating his accumulations, you will remember that it might not be fair to deduct his family expenses, because his family lived out of it, and now they do not have it to live upon." We think that there was manifest error in this instruction. It gave the jury no definite measure of damages whatever, but left them at liberty to adopt any one they saw fit. The case of Pennsylvania Railroad Co. v. McCloskey, 11 Harris 526, to which the learned judge referred, was an action by the personal representative of the deceased under the Act of April 15th 1851, and has no applicability to an action instituted as this was under the Act of April 26th 1855, as is shown by the present Chief Justice in his opinion in The...