Pauza v. Lehigh Valley Coal Co.
Pauza v. Lehigh Valley Coal Co.
Opinion of the Court
Opinion by
We have concluded that there must be a reversal in this
We think the learned trial judge erred in not striking out the testimony of the plaintiff called to our attention by the third assignment of error. This witness testified in chief that the keg of powder carried by James Smith was exploded by coming in contact with the trolley wire.
The instruction complained of in the fourth assignment is clearly erroneous. This instruction was based upon a wrong theory as to the duty of appellant in installing and maintaining an electric haulage system for the operation of its mines. The trial judge instructed the jury that, “it is the province of this jury to use your judgment, as reasonable men, as to what is a proper installation and construction of a dangerous appliance, under all the circumstances and conditions as testified to you, in. that tunnel.” This instruction ignored every proper test of the measure of duty imposed on an employer in such cases and left it to the jury to use their best judgment in determining whether the electric haulage system had been properly installed. This is not the law. The employer is bound to furnish machinery and appliances reasonably safe for the use intended. Reasonable safety within the meaning of the law means that the machinery and appliances furnished must be of the usual and ordinary kind adopted by those in the same kind of business. An employer is not even bound to provide the safest machinery or the newest and most approved appliances. He has performed his duty in this respect when he furnishes those of the ordinary character in general use in the business in which he is engaged: Ford v. Anderson, 139 Pa. 261; Kehler v. Schwenk, 144 Pa. 348; Keenan v. Waters, 181 Pa. 247. The rule is very concisely and clearly stated by Mr. Justice Mitchell in Titus v. Railroad Co., 136 Pa. 618, in the following language: “The unbending test of
The ninth assignment raises the question whether appellant was relieved from liability upon the ground that the underground workings of the mine were in charge of a certified mine foreman. If the facts were as stated in the point, it should have been affirmed. But as we read the evidence the electric haulage system was not in charge of the mine foreman. At least this was a controverted question, and if so, it was for the jury to say whether the superintendent or the mine foremen had charge of and exercised supervision over the electric haulage system.
We cannot agree, as is contended for appellant, that a verdict should have been directed for defendant, or that judgment non obstante should have been entered upon the whole record. For the reasons stated in the Reeder case in addition to what has been said in the case at bar it would have been error to have withdrawn the case from the jury.
When the case is again tried it will be the duty of the trial judge to carefully instruct the jury as to the proper measure of damages, especially as relates to the anticipation of future payments. When future payments are to be capitalized in a verdict, the plaintiff is only entitled to their present worth and the jury should have such guidance from the court as will give them an intelligent understanding of what this means: Goodhart v. Railroad Co., 177 Pa. 1; Wilkinson v. Northeast Boro., 215 Pa. 486.
The second, second and a half, third and fourth assignments of error are sustained.
Judgment reversed and a venire facias de novo awarded.
Reference
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- Pauza v. Lehigh Valley Coal Company
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- Syllabus
- Negligence — Damages—Mortality tables — Evidence—Capitalisation of future payments. 1. When mortality tables are introduced into evidence it is the duty of the trial judge to instruct the jury that the tables are not to be accepted as establishing the expectancy of the life of the injured party, but only as an aid in arriving at what that expectancy might be in view of all the conditions surrounding the particular life in question. Such conditions are to be considered as the party’s prior state of health, character and habits, perils of employment, personal characteristics and other circumstances surrounding his own life. 2. When future payments are to be capitalized in a verdict, the plaintiff is only entitled to their present worth, and the jury should have such guidance from the court as will give them an intelligent understanding of what this means. Evidence — Hearsay—Cross-examination—Striking out evidence. 3. Where a witness has testified that an act was done by a particular person, but on cross-examination admits that he had learned from other parties that the act was done by the person he had named, it is the duty of the court to strike out the testimony offered in chief, as hearsay evidence. Negligence — Master and servant — Mines and mining — Safe appliances. 4. Where in an action to recover damages for personal injuries, it appears that the negligence complained of was the leaving of a trolley line unguarded, and the evidence is that the electric system was of the usual and ordinary character in general use in mines, and that it had been properly installed, it is reversible error for the trial judge to charge that “it is the province of this jury to use your judgment as reasonable men, as to what is a proper installation and construction of a dangerous appliance under all the circumstances and conditions as testified to you, in that tunnel.” 5. An employer is not bound to provide the safest machinery or the newest and most approved appliances. He has performed his duty in this respect when he furnishes those of the ordinary character in general use in the business in which he is engaged. 6. In an action against the owner of a mine to recover damages for personal injuries alleged to have been caused by leaving a trolley line unguarded at a dangerous place in the mine, where the evidence is contradictory as to whether the mine foreman, or the superintendent, had charge of the electric system, the case is for the jury.