Wilson v. Hess

• Decision Date: 21 November 1921
• Docket Number: 150-1921
• Citation: 77 Pa.Super. 515
• Parties: Wilson, Appellant, v. Hess
• Court: Pennsylvania Superior Court

77 Pa.Super. 515

Wilson, Appellant, v. Hess

No. 150-1921

Superior Court of Pennsylvania

November 21, 1921

Argued October 20, 1921

Appeal by plaintiff, from judgment of C.P. No. 1, Phila. Co.-1920 No. 501, on verdict for defendant non obstante veredicto in the case of Isabella Wilson v. Charles Hess.

Trespass to recover damages for death of plaintiff's husband. Before Shoemaker, J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff for $ 1,000. Subsequently, on the motion, the court entered judgment in favor of the defendant non obstante veredicto. Plaintiff appealed.

Error assigned was the judgment of the court.

Reversed.

David Lavis, for appellant.

Harry Felix, of Illoway and Felix, for appellee.

Before Orlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.

OPINION

ORLADY J.

The plaintiff instituted this action against the defendant to recover damages for the death of her husband by reason of the unlawful conduct and negligence of the defendant. The facts are not in material dispute. On April 21, 1920, about seven o'clock in the evening the plaintiff's husband while on the pavement of Toronto Street suddenly fell backward and was picked up by friends, taken to a hospital in a patrol wagon and died the following day from causes described by a coroner's jury and attending physicians of the hospital as a fracture of the base of the skull with concussion of the brain. There is no challenge to the fact that the immediate cause of death was the fracture of the skull with the resultant concussion of the brain, induced by the fall on the pavement. We are more directly concerned as to the proximate cause of this fall. The evidence shows that the deceased was about sixty years of age. He had been continuously at work for twenty-one months without losing a day, at wages ranging from thirty to thirty-five dollars per week, of which he gave his wife ten to fifteen dollars a week. For about a week preceding his death he was not working on account of having sore eyes and during that time he was drinking heavily. The defendant was a licensed saloonkeeper and well acquainted with the deceased as he was frequently in his place of business at Twenty-first and Toronto streets, Philadelphia. The record of the three days immediately prior to the death of plaintiff's husband is important and is given by a number of witnesses. On Monday, the nineteenth, at 8 o'clock in the morning, the deceased requested the defendant's barkeeper to cash a fifty dollar liberty bond for him and after being refused he left the saloon to soon thereafter return with forty dollars in cash which he gave to Hess, the proprietor of the saloon, this defendant, to hold for him. Hess then sold him two drinks and stated to the barkeeper " give him anything he wants, he has a money account here." In the afternoon the deceased returned and Hess gave him another drink and from several witnesses it is clearly established that he had ten to fifteen drinks on that day at the saloon. On Tuesday he came in eight o'clock in the morning and got a drink from the bartender and was then visibly affected by intoxicating drinks. As one witness stated it, you could recognize the man was drunk by his actions. He came back in the afternoon and was quite drunk and got two more drinks. Hess suggested that he come back a little later, an hour or so when he could have more. He returned at the end of two hours and had two more drinks. He received ten drinks on Tuesday at this saloon. He had been drunk every day as a witness described it " staggering around and could not talk." The police took him up several times to his home. On Wednesday at eight o'clock in the morning he received two drinks from the bartender, at half past nine two more drinks, at half past ten, Hess, being in charge of the saloon said: " Robert, you look bad. I will give you one more." That made six. At half past four in the afternoon the bartender gave him another. At five o'clock he was staggering drunk in the saloon and in a heated argument with a man there, could not control himself. At half past six he was quite drunk and the bartender in giving him a drink stated, " drink this up right away and come back when Hess comes in." He had at least twelve drinks on Wednesday. A little after seven o'clock he came out of the side door of the saloon on Toronto Street quite drunk, " in a staggering condition, walking very slow and while on an unobstructed pavement at about the middle of the block he stood for a moment and all at once fell right back on his head." A crowd gathered and he was raised to a sitting posture and his condition was described by several witnesses as, " being unconscious, he could not be wakened up by shaking, he was snoring very hard; he smelled awful of drink; blood was freely flowing out of his left ear." He was assisted to an ambulance and taken to the hospital and, as...