Leonard v. Baltimore & Ohio Railroad
Leonard v. Baltimore & Ohio Railroad
Opinion of the Court
Opinion by
Defendant appeals from a judgment for plaintiff for the death of her husband due to the alleged negligence of defendant’s employees in ejecting him from its car at a dangerous place, in consequence of which he was killed, by a pas,sing train. It being conceded the ques
The first assignment complains of the admission of evidence of the number of acres in decedent’s farm, the different crops cultivated and other similar matters tending to show loss of earnings and profits, as a basis for compensatory damages, the objection to such evidence being that plaintiff’s statement claimed exemplary and punitive damages only, and consequently defendant was without notice or opportunity to meet and rebut the evidence so given. The statement first contains an averment that plaintiff claims damages “in the sum Of twenty-five thousand dollars ($25,000) and in addition to the above sum claims punitive damages from said defendant company, upon a cause of action whereof the following is a statement.” Succeeding paragraphs set forth the manner in which deceased met his death, and that his loss of life was due to defendant’s employees “wilfully, wantonly, knowingly and unlawfully” ejecting him from its train at a dangerous place. Plaintiff also avers deceased’s occupation was that of a farmer and that he “derived great gains and emoluments from tilling the soil and kindred industries, a large portion of which went to the maintenance and support of her and her family,” of which she had been deprived through the negligence of defendant. Plaintiff also claims to recover for funeral expenses, and for the loss of the companionship of her husband. The concluding paragraph states: “Wherefore, and by reason of which, she claims damages in the sum of twenty-five thousand dollars ($25,000) as exemplary damages, and in addition thereto she claims punitive damages for the wilful, wanton, reckless, careless and unlawful conduct” of defendant’s employees. Plaintiff admits the terms “exemplary damages” and “punitive damages” are synonymous in our practice, and claims the word “exemplary” was inserted in the statement by mistake for
In an action of tort, damages necessarily following as a natural and probable result of the injury may be proved without special averments, as defendant will be presumed to be aware of such consequences of his conduct, and hence' cannot plead surprise when proof of such injury is made: Hart v. Evans, 8 Pa. 13; Laing v. Colder, 8 Pa. 479; 13 Cyc. 175. Damages of a special nature and not the usual consequences of the wrong complained of, however, must be specially averred that defendant may be informed of the claim and given an opportunity to prepare his defense: 13 Cyc. 176; Hart v. Evans, supra; Laing v. Colder, supra, but where the action is for injuries to the person the jury may consider, without special averment, pain and suffering, expense incurred for medical treatment and loss of time for inability to work at the usual occupation of the injured person, inasmuch as these are the natural and usual results of an injury: Laing v. Colder, supra; Penna. & Ohio Canal Co. v. Graham, 63 Pa. 290. Under the general averments in the statement of claim showing the occupation deceased followed during his lifetime, the evidence objected to was admissible without special averment, and the plaintiff under such circumstances should not be precluded, by an apparent clerical error,
As the case must go back for a new trial it may be proper to suggest that the error in the statement be amended. Such amendment, aside from the construction we have put upon the plaintiff’s statement, and assuming that compensatory damages have not been claimed, would not set up a new cause of action barred by the statute of limitations. The cause of action is the defendant’s act of negligence resulting in injury to plaintiff. An amendment merely adding an additional item of claim for damages issuing out of the same wrongful act is not a departure. This court has frequently held that an amendment simply introducing an additional element of damage arising out of the same circumstances may be allowed at any time: Puritan Coal Mining Co. v. Penna. R. R. Co., 237 Pa. 420; Armstrong & Latta v. Philadelphia, 249 Pa. 39.
The second assignment of error complains of inadequacy of the court’s charge, in so far as it relates to the measure of damages based on the earnings of deceased, and also as to the instructions for determining the present worth of future earnings. The court charged that in fixing the amount of earnings the jury should consider the age, health, ability and disposition to labor and the habits of living of deceased and referred to the
The third assignment refers to the admission of evidence of a conversation between the conductor- of the train and a witness shortly after deceased had been ejected and after the train had departed from the next station, after receiving and discharging passengers at that stop. The conversation complained of consisted of a question by the witness addressed to the conductor asking his reason for ejecting deceased “in front of that passenger train, when yon knew the passenger train was due?” to which the conductor made no reply, the inference being an admission on the part of the latter of negligence. The reception of this evidence cannot be sustained on the ground of being part of the res gestae, as contended by plaintiff. At the time, the incident was a bygone event, the transaction complete and the conversation between the conductor and the witness merely
It is also suggested the evidence was objected to as not being pertinent and its inadmissibility cannot now be maintained for other reasons. This objection might be sustained were it not that the record further shows plaintiff’s counsel urged its competency because of its “happening so close to the time.” Immediately after this suggestion, as the record discloses, the trial judge overruled defendant’s objection. In this condition, of
The third assignment of error is sustained, the judgment is reversed and the record is remitted with a procedendo.
Reference
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- Leonard v. Baltimore & Ohio Railroad Company
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- Negligence — Railroads —• Ejection of passenger at dangerous place — Damages—Compensatory and exemplary damages ■ — Pleadings — Statement of claim — Amendment—Departure—Measure of damages — Present worth — Instructions—Failure to request more specific instructions. 1. In an action of tort, damages necessarily following as a natural and probable result of the injury may be proved without special averment as defendant will be presumed to be aware of such consequences of his conduct, and hence cannot plead surprise when proof of such injury is made. Damages of a special nature and not the usual consequences of the wrong complained of, however, must be specially averred that defendant may be informed of the claim and given an opportunity to prepare his defense; but where the action is for injuries to the person the jury may consider, without special averment, pain and suffering, expense incurred for medical treatment and loss of time caused by inability to work at the usual occupation of the injured person, inasmuch as these are the natural and usual results of an injury. 2. In an action to recover damages for death of plaintiff’s husband due to the alleged negligence of the employees of defendant railroad company in ejecting deceased from its car at a dangerous place, in consequence of which he was killed by a passing train, defendant complained of the admission in evidence of matters tending to show loss of earnings and profits of deceased as a farmer as a basis for compensatory damages, where plaintiff’s statement claimed exemplary and punitive damages only. The statement first contained an averment that plaintiff claimed damages “in the sum of twenty-five thousand dollars ($25,000) and in addition to the above sum claims punitive damages from said defendant company, upon a cause of action whereof the following is a statement.” Succeeding paragraphs set forth the manner in which deceased met his death, and that his loss of life was due to defendant’s employees “wilfully, wantonly, knowingly and unlawfully” ejecting him from its train at a dangerous place. Plaintiff also averred deceased’s occupation was that of a farmer and that he “derived great gains and emoluments from tilling the soil and kindred industries, a large portion of which went to the maintenance and support of her and her family,” of which she had been deprived through the negligence of defendant. Plaintiff also claimed to recover for funeral expenses, and for the loss of the companionship of her husband. The concluding paragraph stated: “Wherefore, and by reason of which, she claims damages in the sum of twenty-five thousand dollars as exemplary damages, and in addition thereto she claims punitive damages for the wilful, wanton, reckless, careless and unlawful conduct” of defendant’s employees. Plaintiff admitted the terms “exemplary damages” and “punitive damages” were synonymous in practice, and claimed the word “exemplary” was inserted in the statement by mistake for the word “compensatory.” No offer to amend in this respect appears to have been made but, in dismissing defendant’s motion for a new trial, the court below held the testimony offered as to loss of earnings was fully covered by the paragraph of the claim relating to the occupation of deceased and that the limitation in the concluding paragraph did not necessarily prevent the introduction of. evidence to show compensatory damages. Defendant did not plead surprise and case was tried on above theory. Held, no error. 3. The error in the statement might have been amended at any time since it would not set up a new cause of action barred by the statute of limitations. The cause of action being the wrongful act of negligence resulting in the injury to the plaintiff, an amendment merely adding an additional item of claim for damages issuing out of the same wrongful act is not a departure. 4. In such case, in charging on the measure of damages based on the earning's of the deceased, the court said that in fixing the amount of earnings the jury should consider the age, health, ability and disposition to labor and the habits of living of deceased and referred to the testimony touching the extent of his farming occupation. Held, that although the instruction in this respect was brief it was not erroneous and in the absence of a request from defendant for further specific instructions, did not constitute reversible error. 5. In such case, in instructing the jury on the question of the present worth of future earnings, the court charged: “So far as compensation depends or is estimated upon future earnings or accumulations, such earnings or accumulations are to be anticipated and 'capitalized and their present worth determined. That is, what lump sum paid now would be their equivalent?” Held, that the instruction, although brief, was a correct-statement of the law and that in the absence of a request for more extended charge, did not constitute reversible error. Negligence — Railroads—Evidence—Res gestw — Conversation— Rulings by trial judge — Questions considered on appeal. 6. In negligence cases where the actual occurrence is confined to a brief space of time, the res gestas of the transaction is accordingly limited, and tbe period when declarations become merely a narrative of a past occurrence ordinarily begins immediately after the accident. If the transaction is complete and ended, its ending marks the limitation of the res geste of the event and declarations subsequent thereto become merely narrative of past matters. 7. In an action against á railroad company to recover damages for death of plaintiffs husband through alleged negligence of defendant’s employees in ejecting him from its Car at a dangerous place, the admission of evidence over defendant’s objection of a conversation between the conductor of the train and the witness shortly after deceased had been ejected and after the train had departed from the next station after receiving and discharging passengers at that stop, was reversible error. 8. Where plaintiff’s evidence as to a conversation after the accident was objected to as not being pertinent and plaintiff’s counsel urged its competency because of “its happening so close to the time” and immediately afterwards the trial judge overruled defendant’s objection, it cannot be urged on appeal that the question of res geste was not considered or ruled in the court below.