Seeherman v. Wilkes-Barre Co. , 255 Pa. 11 ( 1916 )

Opinion by

Mr. Justice Potter,

In this action of trespass, Louis Seeherman and Eosie Seeherman, his wife, sought to recover from The Wilkes-Barre Company, a corporation engaged in' the manufacture and sale of electricity, damages for tfye death of their son, Isidor Seeherman, which it was alleged re-suited from the negligence of defendant.

It appears from the evidence that a barn on the premises of plaintiffs was lighted by electricity furnished by defendant. A lamp in the middle of the building, hung from the ceiling, and a switch beside the door controlled the light. On the evening of July 21, 1913, about half-past seven, plaintiffs’ son, Isidor, who was then fifteen years old, went to the barn, accompanied by a younger brother, for the purpose of attending to the horses. They turned on the light as they went in. The brother came out first and as Isidor attempted to turn the switch, to extinguish the light, he received a shock which killed him. It was alleged that the accident was due to the unsafe condition of a transformer, an instrument attached to a pole near plaintiffs’ premises, the purpose of which was to reduce the dangerous current of electricity passing through the main wire, to a safe current to be introduced into houses and all places for lighting purposes, —the reduction being from a voltage of 2,300 to 110. Plaintiffs- relied, however, on the doctrine of res ipsa loquitur to establish a presumption of negligence, ..and the trial judge instructed the jury that, under the circumstances of the case, that doctrine was applicable, and the law imposed on defendant the burden of showing that it was not negligent. The trial resulted in a verdict for plaintiffs, and defendant has appealed. In the first assignment of error the action of the trial'judge is questioned in sustaining the challenge to a juror upon the ground that he was the owner of a bond issüed by defendant company. In Hufnagle v. Delaware & Hudson Co., 227 Pa. 476, our Brother Moschzisker-said (p. 479), that “the general principle is laid down in our cases that no person should be permitted to serve on a jury who stands in any relation to a party to-the ca'use that would ‘carry with it prima facie evident marks of suspicion of favor.’ ” A stockholder in a corporation is incompetent to serve as a juror in a case in which the corporation has an interest: Silvis v. Ely, 3 W. & S. 420, 424; Irvine v. Bank, 1 Pitts. Rep. 422. In the present case, the intimation that ownership of one of its bonds might influence, the juror favorably towards defendant was possibly farfetched. But the rejection of the juror did defendant no harm. All that it was entitled to, was an impartial jury. It had no right to the service of any particular juror. In 1 Thompson on Trials (2d ed. 1912), Section 120, the correct principle is thus stated: “The right to reject is not a right to select. No party can acquire a vested right to have a particular member of the panel sit upon the trial of. his cause until he has been accepted and sworn. It is enough that it-appear that his cause has been tried by an impartial jury. It is no ground of exception that, against his objection, a juror was rejected by the-court upon insufficient grounds, unless, through rejecting qualified persons, the necessity of accepting others not qualified has been purposely created. Thus, in the process of impaneling, no party is entitled, as of right, to have the first juror sit who has the statutory qualifications.” It was certainly desirable that the cause should be tried by persons free even from the suspicion of partiality. That the doctrine of res ipsa loquitur was properly applicable to the facts of this case is clear from the decisions in Alexander v. Nanticoke Light Co., 209 Pa. 571; Crowe v. Nanticoke Light Co., 209 Pa. 580, and Delahunt v. United Telep. & Teleg. Co., 215 Pa. 241. The trial judge was right in charging the jury that the facts raised a presumption of negligence on the part of defendant, and in refusing to give binding instructions in its favor. The seventh, ninth, tenth and twelfth assignments of error are therefore dismissed. The question of the admissibility of evidence of repairs to the transformer made shortly after the accident, is raised in the fourth and fifth assignments. The testimony did not bear out the offer, being merely in substance that the Avitness saw a man on the pole working on the box, and three other men standing on the ground near by. The witness did not know what the box was, nor did he connect the men with defendant, so that the motion to strike out the testimony as immaterial should have been sustained. It must be regarded as settled law in Pennsylvania, that evidence of precautions taken after an alleged negligent act is not admissible for the purpose of showing antecedent negligence: Baran v. Reading Iron Co., 202 Pa. 274; Elias v. Lancaster, 203 Pa. 638; Matteson v. N. Y. Cent. & Hudson River R. R. Co., 218 Pa. 527.

The sixth assignment of error is to the refusal of the trial judge to withdraw a juror and continue the case on account of alleged improper remarks of plaintiffs’ counsel in his closing speech to the jury. He admits that he said that defendant’s negligence “might have justified a verdict of manslaughter in a prosecution (against the officers of defendant company) for criminal neglect.” There was no warrant for making such a statement, and its only purpose must have been to excite the prejudice of the jury. When the remark was brought to the attention of the court, counsel not only failed to withdraw it, but said: “I reiterate it now.” The very least that the trial judge should have done, was to rebuke counsel and caution the jury to disregard the remark. The observation by this court upon this subject in Brown v. Central Penna. Traction Co., 237 Pa. 324, is appropriate here. It was there said (p. 327) : “In cases of this character it is the jury’s duty to find the facts, and when the plaintiff is entitled to recover, to fix the amount of the damages; but the verdict should be given by way of compensation to the plaintiff and not punishment or warning to the defendant. To urge these latter considerations upon the attention of a jury merely serves to divert their minds from the proper line of thought and counsel indulge in such tactics at their peril.” We sustain the sixth assignment of error.

Complaint is also made that the instructions to the jury as to the measure of damages, were not sufficiently definite. In the general charge the trial judge did not limit the jury to the present worth of the sum at which the son’s services were valued. But when his attention was called to the omission he gave further instructions that, in estimating the value of future services, the jury could allow only the present worth of the sum which they might find to be the value of those services. This was practically all that was required, although the instructions might well have been more explicit in defining the elements to be considered. As an example of such definition, in Hockenberry v. New Castle Electric Co., 251 Pa. 394, Mr. Justice Stewart said (p. 399) : “What the wife would have received out of the wages of her husband was, of course, an element to be considered and determined, but only as basis for capitalization in a'sum which would represent present value, She could have received a share in the wages only as the wages were earned; the verdict would be for a demand presently payable, the exact equivalent of the anticipated sum.” In the present case, had the son lived, his earnings would have come in from year to year during his minority. In order to ascertain the equivalent of these amounts, in one sum payable at the present time, the amount of the annual payments should, of course, be discounted. If counsel desire accuracy in such calculation, proof should be made by means of annuity tables, of the present value of a series of payments of one dollar each payable through the required number of years. From .such a table the cost of any required annuity can readily be ascertained. Standard tables of this character are available and proof of them may be made in manner similar to that in which the tables showing the expectancy of life are placed in evidence.

The fourth, fifth, and sixth assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.