Ott v. Philadelphia , 235 Pa. 354 ( 1912 )

Opinion by

Mr. Justice Moschziskeb,

This was an action in trespass against the city of Philadelphia, instituted by George Ott, in his own behalf and as the father and next friend of Jennie Irene Ott, to recover damages arising from personal injuries to the latter.

On June 10, 1910, at about 8:45 in the evening, George Ott was driving a carriage containing himself and his two-year-old daughter along a public street when his conveyance fell into a ditch or trench opened by the city for the purpose of connecting water-mains; the child was thrown over the dash-board and is alleged to have received serious injuries. The jury rendered a verdict for the plaintiff. The defendant has appealed and assigns for error the following excerpts from the charge of the trial judge: “The next item to be considered is whether Mr. Ott, as the result of this injury, will be obliged to spend other money for medical services or care of this little girl from this time until she arrives at the age of twenty-one years, when his legal liability would cease. If you find that, as the result of this injury, he would be necessarily required to spend money for her care in the future, medical or otherwise, if the testimony satisfies you of that fact, while there has not been any evidence as to what it would probably be, you will have to apply your good judgment to that, and judge by what has been paid in the past; ascertain, if you can, reasonably, what he would probably be required to expend in the future for such medical treatment, the testimony being, according to some of the witnesses, at least, that she is still by no means well;” and “She (Jennie Irene Ott) would also be entitled to an allowance or compensation for her loss of earning power after she had arrived at the age of twenty-one years, if you find and can find from this evidence that there would be such a loss of earning power after she is of the age of twenty-one years.”

The strongest proof produced by the plaintiff concerning the probability of the duration of the impaired physical condition of his daughter, was the testimony óf one of his medical experts who said that she was suffering from a nervous condition and malnutrition, that she was growing worse and the chances of her recovery were unfavorable, adding, “my opinion is that if she lives to the time of puberty she may improve, but I doubt whether she will live that long.” This, with the other testimony in the case, was too meager to justify a finding that the child’s condition would last beyond her majority, or what expenses would probably be incurred by the father for future treatment; while neither of these could be shown exactly, both of them were susceptible of proof to a degree. The plaintiff called three doctors who had treated the child, and they should have been asked for their professional opinion concerning the probable duration of her trouble, the nature of the treatment necessary in the future, and for an intelligent estimate of its cost, but there was no real attempt to secure light upon any of these points; in the absence of this, the parts of the charge complained of constitute harmful error. The assignments are sustained, and the judgment is reversed with a venire facias de novo.