People's Passenger Railway Co. v. Lauderbach , 4 Pennyp. 406 ( 1884 )

the opinion of the Court was delivered by

Green, J.:

The charge and answers of the learned judge of the court below were in the main correct, but we think there was error in some of the answers, and in the action of the court upon the subject of damages, to such an extent as to require a reversal. We refer more particularly to the answers to the defendant’s seventh, eighth, and tenth points, covered by the fourteenth, fifteenth, and seventeenth assignments. The seventh point was in these words : “If the plaintiff sat with his arm . on the sill of the window, and suffered unconsciously his arm to slip out of the window", and he was injured, he cannot recover.” The answer was : “I decline to say that, unless yon find it the proximate cause.” The point was slightly faulty in not associating the projection of the arm and the injury more closely, as, for instance, by introducing the words “in consequence,” after the word “injured,” but such was its substantial meaning, and it was evidently so regarded both by the counsel and the Court. This is illustrated by the phraseology of the eighth and tenth points, both of which present in express words the idea that if the position of the arm was such as to occasion-the injury, the plaintiff w"as guilty of contributory negligence and could not recover. These points were all answered alike, to the effect that the hypothetical fact in each instance would not debar a recovery unless it was the proximate cause of the injury. In our judgment, the points should have been affirmed without qualification. The points called for a purely legal determination of the effect of a given fact, which w"as in itself of such a character as to require such a disposition. To say that the legal result would depend upon the remoteness or proximity of the assigned cause to the actual effect, was simply to decline an expression of the legal effect of the suggested fact and pass it over to the jury, where it did not belong. If some other part of the plaintiff’s body, which remained inside the car, had been injured, and not the arm, the answer of the court would have been apposite. For then á true question of remoteness or proximity would have arisen. But here it was the protruded arm itself which was injured, and by the hypothesis of the point the arm was in an unlawful place. It was outside or 'beyond the car, or, according to the eighth and tenth points, its position was the contributing cause of the injury. In either case, there was no room for the interjection of a possible remoteness or proximity of cause to effect between the specially assigned cause and the necessary direct and immediate effect flowing from it. The only qualifying suggestion of either of the points was the unconsciousness of the projection of the arm appearing in the seventh. That circumstance, however, would not affect the legal result of the actual projection of the arm beyond the window. Whether done consciously or unconsciously, it was without right as against the carrying company. This very subject was expressly ruled in Pittsburgh and Connellsville R. R. Co. v. McClurg, 6 P. F. S., 294, on p. 299. Thompson, C. J., says : “Unconsciously exposing himself did not help the plaintiff’s case, as it was not shown that this unconsciousness was not the result of a want of prudent attention to his situation on the part of the plaintiff.5 ’ The case also ruled absolutely the proposition that where a traveller put his elbow or an arm out of a car window, voluntarily without any qualifying circumstances impelling him to it, it must, be regarded as negligence in se; and when that is the state of the evidence, it is the duty of the court to declare the act negligence in law. We. have no disposition to change the rule thus stated, and for that reason must consider the qualified answers to the seventh, eighth, and tenth points of the defendant, in the present case, as erroneous. We would say the same as to the answer to the fifth point covered by the twelfth assignment, if the protrusion of the arm were averred as an independent fact, but the point is so framed as to render it uncertain whether the protrusion was the result of the rubbing of the cars together, or was the voluntary act of the party. On the question as to the effect of the mere resting of the arm on the window sill without protrusion, our recent decision in the case of Germantown Passenger Railway Company v. Brophy, 14 W. N. C., 213, determines that it cannot be regarded, in itself, as an act of contributory negligence, hence no discussion of that subject is needed here.

On the question of damages, the Court charged the jury quite correctly, stating the elements proper for their consideration. Especially they said that loss of ordinary labor of-the plaintiff might be allowed for, but not what might be made by speculative business or in consequence of contracts entered into with others. All this was entirely correct, yet proof was admitted, under objection and exception, of loss of income from the plaintiff’s business as an engraver, and also from inability to make as much as he otherwise might have made out of a certain running contract for engraving with D. Appleton & Co. Under the rulings which permitted this proof, the plain.tiff testified that he employed others to assist him in his business; that his income from his business was as high as $10,500 in one year, and as low as $2,800 in another, and that it averaged annually, for five years, over $7,500. He also testified that on the contract with Appleton he lost over $5,000 during one year on account of the accident, though he also said he was engaged on the contract fully two years after the accident, doing all he could do. We think all of this testimony was objectionable and should not have been received. It was said by the judge, in his charge, that there was no evidence to show that the injury was permanent, and. that the plaintiff admitted that his arm was as good as it ever was, and it was not pretended that there was a permanent loss of earning power. It was proved that the highest wages paid to the most skillful engravers did not exceed about $40 per week, and yet a verdict was recovered for $9,000, the time of plaintiff’s enforced abstinence from work being less than six months. In view of the testimony of an objectionable character which was admitted, it is quite possible the minds of the jurymen may have been unduly affected, notwithstanding the cautionary language of the charge. It was quite proper to prove the loss of earning power, as that is an element of damage which may b.e considered, but the loss of income, which means profits of a business fluctuating so widely, and of possible profits on a special contract, cannot be regarded as a legitimate basis of recovery. We, therefore, sustain the first, second, and third assignments, and on these and the fourteenth, fifteenth, and seventeenth assignments,

The judgment is reversed and a venire facias de novo awarded.