Maher v. Philadelphia Traction Co.

Opinion by Mr. Chief Justice Stebbett,

This action of trespass in the name of Agnes Maher by her father and next friend was brought to March term, 1894, to recover damages for injuries to the plaintiff’s person, alleged to have been caused by the negligence of defendant company. The injuries having resulted in plaintiff’s death on October 30,1894, after the cause was at issue, her personal representative was afterwards duly substituted as plaintiff under the act of April 15, 1851, and article III. section 12, of the constitution, as construed by this court in Birch v. Railway Co., 165 Pa. 339 . The latter declares that, in case of death from such personal injuries, “ the *396 right of action shall survive, and. the General Assembly shall prescribe for whose benefit such action shall be prosecuted; ” and the 18th section of the former provides that no action thereafter brought “ to recover damages for injuries to the person by negligence or default shall abate by reason of the death of the plaintiff; but the personal representative of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction.” In Birch v. Railway, supra, we held that this provision of the act of 1851 has not been either expressly or by implication repealed or modified by subsequent legislation; and we have no reason now to doubt the soundness of that conclusion. Following in the line of that case we have since held that the amount recovered in such cases is personal estate of the deceased, and, as such, is distributable first to the payment of debts, etc., if any: Taylor’s Estate, Birch’s Appeal, 179 Pa. 254 .

On the trial, the testimony as to defendant company’s negligence was more or less conflicting. Without specially referring to or attempting to summarize the testimony on either side, it is quite sufficient to say that if the evidence relied on by the plaintiff was believed by the jury, they were clearly warranted in finding against the defendant. On the other hand, if they believed the evidence of defendant’s witnesses, of which its first and second points for charge are predicated, they would have been justified in finding for defendant. In brief, the case depended on controverted questions of fact which the juiy alone could legally determine. It was accordingly submitted to them by the learned president of the common pleas in a clear and adequate charge which appears to be free from substantial error.

It does not appear that anypoints for charge were submitted by the plaintiff, but, on behalf of the defendant, the learned court was requested to charge :

“ 1. If the jury believe from the evidence that the child unexpectedly and without warning ran from the pavement in front of the moving car, and the motorman did not see it in time to avert the accident, there can be no recovery, and the verdict should be for the defendant.

“ 2. The mere fact of the injury and death of the child raises no presumption of negligence against the defendant company, and if the jury believe from the evidence that the motorman *397 was attending to his business, and did not see the child in time to avert the accident, the verdict should be for the defendant.

“ 3. Under all the evidence the verdict should be for the defendant.”

The first and second of these requests for instruction were withdrawn by defendant’s counsel. The third was refused, and his exception thereto constitutes the subject of complaint in the first and second specifications.

A careful examination of the testimony has convinced us that the first specification cannot be sustained. In view of the evidence tending to establish the fact of defendant company’s negligence, it would have been manifest error in the court to have withdrawn the case from the jury by directing a verdict for defendant, as requested in its third point.

Again, the point just referred to was never intended to raise the question that is now ingeniously claimed to be involved in the second specification of error; but, assuming for argument sake that it was so intended, there is no merit in the defendant’s contention. As we have already seen, upon the death of the plaintiff and suggestion thereof to the court her administrator was rightly substituted as plaintiff; and as such, he had an undoubted right to prosecute the suit commenced by her “ to final judgment and satisfaction.” It is our purpose to adhere to our recent ruling in Birch v. Railway Co., supra.

The third and last specification alleges error in part of the learned judge’s charge on the subject of damages. It does not appear that any exception was taken to the charge, but the appellee has not interposed any objection on that ground. We therefore treat the specification as valid, and proceed to consider its effect.

Inasmuch as no instruction was asked on the subject of damages, the question is not whether fuller instructions might not have aided the jury in arriving at a correct conclusion, but whether those given were inadequate to furnish a proper meas•ure or standard, or were positively misleading. We are not prepared to say that they were either.

As the action had been brought in the lifetime of the injured party and had survived by virtue of section 18 of the act of 1851, it logically follows that the damages recoverable by her personal representative should be the same as she could have *398 recovered had death not ensued. Included therein are damages for pain and suffering up to the time of her death, and diminution of earning power during a period of life which she would have probably lived had the accident not happened. It is a mistake to suppose that the recovery in this case is for the death. It is still for the personal injury. In Moe v. Smiley, 125 Pa. 141 , Mr. Chief Justice Paxson, speaking of the act of 1851, says : “ It is idle to say that when a man is killed by unlawful violence it is not an injury to his person.” One element of the injury in such case is the total impairment of the earning power, placed beyond the possibility of doubt by the death, and hence a simpler problem for the jury, but the measure of damages therefor is the same as if the party had survived. The language of the court below on this point was used by way of illustration, and indicates the measure of damages with sufficient accuracy.

In Pennsylvania Railroad Co. v. Zebe, 33 Pa. 318 , Mr. Justice Thompson, at page 329, referring to the case of Railroad v. McCloskey, 23 Pa. 526 , says: “ While it adheres to the rule of giving damages only upon such bases as are susceptible of a pecuniary estimate, it seems to regard the value of the life lost as the basis of the estimate rather than the injury resulting from it to the survivor entitled to sue. This conclusion flowed from the form of, and parties to, the action, and naturally led to the result. It was a suit by the personal representatives for the benefit of the estate. Treated in this light, and as the plaintiffs — the administrators — were not damaged by the death, but were recovering for the estate, the only estimate, it seems to me, that could be made was of the value of the life. The wrong-done to it survived, by virtue of the statute, to the estate, and gave the personal representatives their right of recovery co-extensively with its value.”

In an action that has survived to and is prosecuted by the personal representative, under the statute, there can doubtless be a recovery, not only for mental and physical suffering of the injured decedent, but also for the value of his life. This necessarily follows from the fact that the action brought by him survived to and is prosecuted by his personal representative. It was so decided in Muldowney v. Railway Co., 36 Iowa, 462 ; and the reason why it was held otherwise by the English courts is (as stated in the early case of Blake, Administratrix, v. Mid *399 land Railway Co., 10 Eng. L. & Eq. 437) because the English act w does not transfer this right of action to his representative, but gives to his representative a totally new right of action on different principles.” With us, however, the right to recover a solatium necessarily follows from the fact that the action, as brought by the injured party, is continued by the statute.

We find nothing in the record that would justify us in sustaining either of the specifications. They are therefore overruled and the judgment is affirmed.