Smith v. Pittsburgh & W. Ry. Co.

• Decision Date: 05 November 1898
• Docket Number: 5,115.
• Citation: 90 F. 783
• Parties: SMITH v. PITTSBURGH & W. RY. CO.
• Court: U.S. District Court — Northern District of Ohio

90 F. 783

SMITH v. PITTSBURGH & W. RY. CO.

No. 5,115.

United States Circuit Court, N.D. Ohio, Eastern Division.

November 5, 1898

E. B Leonard, for plaintiff.

Jones &amp Anderson, for defendant.

HAMMOND J.

With reluctance, I have concluded to overrule the motion for a new trial. That reluctance grows out of the size of the verdict and not at all out of any suggested errors of the court in the instructions to the jury, which were as favorable to the defendant as could be reasonably expected, under the proof in the case.

If the plaintiff had been of mature years when the injury occurred the court might suggest a remittitur, if she chose to accept it, as was done in Wood v. Railroad Co., 88 F. 44, and very much for the same reason. But there the brakeman, although without negligence in his own conduct, was consciously engaged in a hazardous employment, and voluntarily occupied a dangerous place. He knew that railroad operatives were often negligent in doing their work, however prudent he himself might be. The child did not. She did not recognize that loaded cars might be turned loose in public streets to crash across the pathway she was following. Therefore, might not the jury be somewhat justified by that circumstance? Or, at least, may not the court be excused, in the absence of any delicate scales for measuring such damages by the jury, in allowing the larger amount to stand in the one case and not the other?

However this may be, there are other reasons which overcome the reluctance to sustain so large a verdict, and mainly because of the fact that the plaintiff here is a girl. It was the almost fatal injury to her prospects of marriage, the chief reliance of women for advancement in the monetary values of their lives, that influenced the jury, no doubt. The reasoning of the brakeman's case does not apply, therefore, in its premises of fact, to that of a girl similarly situated.

In Grotenkemper v. Harris, 25 Ohio St. 510, 514, the supreme court of Ohio, approving the doctrine of Railroad Co. v. Barron, 5 Wall. 90, and applying it to the case of the death of a child by the wrongful act of the defendant, in a suit by its next of kin, under the statute of Ohio, uses this language:

'The deceased at the time of his death was a mere infant, and it could not properly be said that his life was of any pecuniary value to any one; and the only basis upon which damages for pecuniary injury to his next of kin, by reason of his death, could be predicated and allowed, was the one given by the court. If death had not ensued from the injury complained of, there can be no doubt that the party injured, although an infant, could, by his next friend, have maintained an action against the wrongdoers, and have recovered damages commensurate with the injury sustained.'

Turning to the action of the trial court, we find that what was thus approved in that case was an 'allowance of damages other than such as would immediately and directly follow from the wrongful act of the defendant,' and might include, though more difficult of application in case of a mere child, such pecuniary benefits as the next of kin 'would probably have derived from him in the future. ' And the jury had been told, in substance, that they must take all the facts and circumstances into consideration, and assess such damages as the next of kin had suffered in view of the future prospects, as they appeared from the then existing circumstances and the ordinary development of such a child. There is not a statute governing this case, but the rules of the common law for measuring the damages were substantially the same where there was no death and the injured party is suing in his own behalf, and the supreme court of Ohio recognizes this in the case cited. And, on this rule, I am unable to see why a girl five years old may not ask the jury to consider what effect the injury of disfigurement will probably have on the prospects of her marriage when she reaches the age of womanhood, and how far the money value of her whole life may be blasted by that circumstance. It is not speculative because it is difficult to estimate, nor in any other sense than almost every element of damages is speculative where the ascertainment depends on what the jury, or other trior of the fact, 'shall deem fair and just,' and where, being 'uncertain and indefinite,' the damages are not capable of adjustment 'with precision and accuracy,' as was stated in the Ohio case. The estimate must be entire, once for all, and hence we cannot wait to see how the unknown adversities or contingencies of the future may affect the question; as if, by some other calamity, those prospects which we presently estimate, should turn out to have had no existence at all; as if the girl should die before she reaches womanhood; or, having reached it, should find a profitable marriage notwithstanding the disfigurement.

In the case of Ernestine Koch, injured on shipboard, a servant girl, who, among other injuries, received a wound in the forehead, from which a permanent scar resulted that 'somewhat disfigured' her, Judge Deady allowed, as one item, $500 for the scar, concerning which he uses this language:

'It may be that the sum of $500 is an insufficient compensation for such a blemish upon the personal appearance of the libelant. But it does not appear that the scar will affect her personal appearance, so as to make her presence offensive or painful to others,' etc.

And then he says this:

'Still the scar will be a permanent disfigurement of her person, for which she is entitled to some compensation. Karr v. Parks, 44 Cal. 49. In this country, at least, it is still open to every woman, however poor or humble, to obtain a secure and independent position in the community by marriage. In that matter, which is said to be the chief end of her existence, personal appearance-- comeliness-- is a consideration of comparative importance in the case of every daughter of Eve. ' The Oriflamme, 3 Sawy. 397, Fed. Cas. No. 10,572; 3 Suth.Dam. 268; 1 Suth.Dam. 765.

There are other familiar instances where loss of marriage prospects are elements of damage, as in seduction, breach of promise (for the particular loss by that breach of contract), slander or libel (under some circumstances), and sometimes of false representations amounting to a distinct and actionable injury. Cooley, Torts, 277; 3 Suth.Dam.

323. An injury to the person of a woman affecting her prospects of marriage should be as actionable as one to her character.

The petition in this case does not specially plead any loss of marriage prospects, but in a case like this it is difficult to see why there should be any special plea. It is said by Mr. Sutherland that special damages are required to be stated in the declaration, and that an unmarried woman cannot secure damages on account of her prospects of marriage being lessened by the personal injury for which she sues, unless such special damage by alleged; for which he cites Hunter V. Stewart, 47 Me. 419; 1 Suth.Dam. 763, 765; 3 Suth.Dam. 268, and note. Not having an opportunity of examining that case to see the age of the woman, its bearing is not fully understood. But presumably it was a woman, and not a child of five years of age, as to which it could hardly be said that she could truthfully set up any special plea or averment as to a loss of marriage; and, therefore, presumably the case, and all like it, would fall within the general rule of pleading that damages not following directly as a consequence of the particular circumstances must be specially pleaded. The loss of a particular prospect of marriage must be specially pleaded, no doubt, but why should the loss of the general prospect belonging to a child whose injury so disfigures her as to make marriage almost impossible? It would seem rather to fall within the rule of the Ohio case above cited, as applicable to a girl's prospects in the future, although a mere infant now; and, generally, within the doctrine that such a loss is a natural consequence of the injury, and not a special consequence, very much like the loss to growing crops, which may be compensated in damages. Suth. Dam. 158, 187, 193-198.

It would be agreed by all that the injury to this plaintiff does seriously impair her prospects of marriage when she reaches the marriageable age, and I had no hesitation in holding that such impairment is an element of damage for the consideration of the jury. It is not more likely to unduly influence a jury, nor is it more difficult of estimation, than any other element of damages confessedly within their consideration when a mere child is injured, nor at all unlike most of the elements of calculation or estimation in all cases of personal injury. It all depends on the fair judgment of the jury, and is especially subject to the scrutiny of the court and its power to control excessive verdicts, as was said by Cresswell, J., in Smith v. Woodfine, 1 C.B. (N.S.) 660, in a somewhat analogous estimation of damages without the aid of a precise rule. 3 Suth.Adm. 323, and note; Id. 289; 1 Suth.Dam. 810.

Mr. Justice Story, in the leading federal case on the duty and power of the court to control the verdict by compelling a remittitur of excessive damages, under the penalty of a new trial, describes the perplexity of every judge called upon to exercise the power in language that will guide and comfort him as well as any enunciation on the subject. He says:

'As to the question of successive damages, I agree that the court may grant a new trial for excessive damages. So far as the contrary doctrine may be supposed to be maintained by Duberley v. Gunning, 4 Term R. 651, it has been qualified or overturned in Chambers v. Caulfield, 6 East, 244, and Hewlett v.

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