McCloskey v. Bells Gap R. R. , 156 Pa. 254 ( 1893 )

Opinion by

Mr. Ju,stick Mitchell,

The portion of the charge included in the first assignment would be clear error if it stood alone, for it made injury to the plaintiff, and not negligence, the standard of liability. But taken in its place and in connection with the rest of the charge it is quite clear that the mode of expression was a mere inadvertence, and was not meant by the learned judge to give the jury the fact of injury as a test of plaintiff’s right to recover, nor could it have been so understood by them. On the contrary the true guide was given to them repeatedly, before, in immediate connection with, and after the sentence complained of. The learned judge began his charge by stating the first question for the jury to be “ whether or not the injury of which the plaintiff complains was caused by the negligence of the servants ” of defendant, and telling them distinctly that there could be “ no recovery for any amount however small unless you are satisfied from the testimony that the injury was the result of the negligent conduct of the defendant company or its employees.” He then defined negligence and affirmed the points of defendant on this subject, the second of which might justly have been complained of by the plaintiff but certainly not by the appellant. Again telling the jury explicitly that “ the first and important question to determine is whether or not, under the circumstances as they are shown by the evidence here, there was negligence in the manner in which the connecting of this car was made,” he reviewed the circumstances as claimed by the respective parties, and in so doing used the phrase which is assigned for error. The evidence of defendant in denial of any jar that could or did cause the injury was fairly rehearsed, and at the close the jury were again told, “now that is the sum and substance of it. . . . Upon this question of negligence you are to take it and consider first whether there was negligence on the part of the employees,” etc. The question of damages was then taken up, and finally in the concluding paragraph, the words with which the case was put into the jury’s hands, the learned judge said, “ This is an important case. ... it is for you to weigh this testimony, .... but if you find there was no negligence and that there was that reasonable degree of care which prudent and reasonable men would use under the circumstances, then your verdict must be for the defendant.” As already said, it is quite clear that the learned judge did not mean to give the jury any test of liability by the mere fact of injury. His expression was inadvertent, and probably no one would admit more readily than himself that it was not happily chosen, but it would be unjust, not only to him but to the appellee, to assume in the face of such reiterated declarations of the true test, that the jury could have been misled by this single phrase.

The same remarks apply to the charge in the second assignment. In view of the notorious and perverse tendency of juries not only to find verdicts in this class of cases for plaintiffs who are not entitled to anything, but also to give exaggerated amounts even in meritorious cases, any expression that tends to suggest to a jury that it is not subject to the strict control of legal principles, is undesirable, and may be erroneous, as was held in R. R. Co. v. Adams, 89 Pa. 31, and Collins v. Leafey, 124 Pa. 203. But in the present case the learned judge followed the general phrase complained of, immediately and in the same sentence, by a specific enumeration of the items of damage, and concluded with the direction that “ all these taken together would be the amount that the plaintiff is entitled to recover.” In view of this part of the charge we cannot say that the jury were left without a correct rule to guide them. The case belongs in this respect to the class of R. R. Co. v. Frantz, 127 Pa. 297.

In regard to the third assignment it is sufficient to say that the remarks of counsel to the jury are not reviewable here: Com. v. Nicely, 130 Pa. 261.

The verdict in the present ease appears to us excessive and the plaintiff’s right to recover at all questionable, but the remedy for these matters is not in our hands.

Judgment affirmed.