McGonnell v. Pittsburgh Railways Co. , 234 Pa. 396 ( 1912 )

Opinion by

Mr. Justice Moschzisker,

This was an action brought by John McGonnell and Mary, his wife, to recover for personal injuries to the latter. John died while the suit was pending and it was continued by the widow on her own behalf and as executrix of the estate of her deceased husband. The jury rendered a verdict in the sum of five hundred dollars for the estate of John McGonnell, and one of six thousand dollars for Mary McGonnell; judgments were entered thereon, and the defendant has appealed.

Where the appellant assigns an entire charge as inadequate he should indicate in his specification of error wherein it is deficient, so that attention may be directed to the particular points he desires to make; this course was not pursued in the present case. In his argument, however, the appellant suggests that the charge failed to make any reference to the testimony of the medical experts, and urges that it was the duty of the trial judge to explain the nature of such testimony and the effect which should be given to it; that the jury’s attention should have been called to the conflict in the testimony of these experts; that they should have been instructed to reconcile the contradictions, and as to what their duty was in case they could not do so. While these criticisms are justifiable, since no special instructions were requested, we might not reverse on them alone; but as there is at least one other error, which necessitates a retrial, we sustain the third assignment.

Plain error was committed in saying to the jury that the plaintiff was entitled to “compensation by way of damages for delay;” and that “it might be less than six per cent.; it might be any per cent, the jury would say was right * * * .” In a personal injury case the damages are assessed as of the date of the trial and not of the injury; hence there can be no general compensation for delay: 1 Sedgwick on Damages (8th Ed.) sec. 320; Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. 306, 317; Richards v. Citizens Natural Gas Co., 130 Pa. 37. Furthermore such compensation can never be at a higher rate than six per cent. The fourth assignment is sustained.

It appears that for some years prior to her injury the plaintiff, Mary McGonnell, had kept a hotel at Atlantic City, New Jersey, and that she has since continued in the same business but changed her location to McKees Rocks, Allegheny County, in this State. While her former place differed from the present one in size and character, the occupation pursued by her is essentially the same. The first assignment complains of evidence introduced to show wages paid by the plaintiff to servants at her new hotel, who were engaged to do work which prior to the accident, at her old place of business, she had been able to accomplish herself. Testimony showing wages paid to a servant employed to perform necessary work for a plaintiff, which before her injui’y she did herself, is always admissible (Willis v. Traction Co., 189 Pa. 430) ; and proof relied upon to show diminution of earning power need not be clear and indubitable (Simpson v. Railroad Co., 210 Pa. 101, 104). The testimony called to our attention is so vague and uncertain that no satisfactory conclusion concerning a definite actual loss could be based thereon and it would be of little aid for any purpose; but we see no error in its admission. The only just criticism that can be aimed at the abstract from the charge covered by the second assignment is that, in dealing with this testimony the trial judge failed to call attention to its vague and uncertain quality. Neither of these assignments is sustained.

The judgment is reversed with a venire facias de novo.