Boggs v. Jewell Tea Co.
Boggs v. Jewell Tea Co.
Opinion of the Court
Opinion by
This action by a widow, on behalf of herself and child, is for damages resulting from the death of her husband.
When the father was killed the child (a girl) was a year old, and, on the question of damages, the trial judge called the jury’s attention to the fact that as she grew older her cost of maintenance would likely increase. That was a matter of common knowledge and did. the defendant no harm, especially in view of the judge’s further suggestion that she might go to work at the age of sixteen. In Delahunt v. United T. & T. Co., 215 Pa. 241, it is held not reversible error for the trial judge to remark to the jury that the deceased father might have been liable to contribute more to the support of a deaf-mute child than he ordinarily would.
There was no error in affirming plaintiff’s first point to the effect that in measuring the conduct of the defendant’s driver the jury might consider the fact that by universal custom and consent an ambulance sounding its gong and approaching at high speed is given the right of way. That is practically our language on the former appeal: Boggs v. Jewell Tea Co., supra.
Under plaintiff’s evidence, the proximate cause of the accident was driving the horse in front of the ambulance; but for that, the latter would have continued its course along the north side of the avenue and Boggs would have been across in safety. That act necessitated a change of the course of both vehicles and caused the accident, and it all happened in about three seconds. It was a short chain of events, unbroken by any independent intervening cause. It is like the case where A, jumping to avoid a blow aimed at him by B, accidentally injures C, in which the act of B is undoubtedly the proximate cause of C’s injury. A proximate cause is one which, in actual sequence, undisturbed by any independent cause, produces the result complained of: Bruggeman et al. v. City of York, 259 Pa. 94; Nirdlinger v. Am. Dist. Tel. Co., 245 Pa. 453, 458; Behling v. Southwest Penna. Pipe Lines, 160 Pa. 359. “The test of proximate cause is whether the facts constitute a continuous succession of events so linked together that they become a natural
Defendant’s negligence must be a proximate cause, but not necessarily the sole cause, of the accident. Even conceding that the negligence of the chauffeur of the ambulance concurred with that of defendant’s driver, of which there is slight if any evidence, it would not be a defense here. An action lies against either of joint or concurring wrongdoers: Faust v. P. & R. Ry. Co., 191 Pa. 420; Comey v. Phila. Traction Co., 175 Pa. 133; Mann v. Weiand, 81* Pa. 244. So, if true, it is no defense here that the chauffeur, by the exercise of skill and judgment, might have averted the accident in spite of defendant’s negligence. True, if the chauffeur, as a sub
As we have often said, we cannot review the action of the trial court in passing upon a motion for a new trial except in case of manifest abuse of discretion. While the verdict is for a very substantial sum it is not so clearly excessive under the evidence as to warrant our interference. And the remarks of plaintiff’s counsel in his closing address to the jury were not objected to at the time, nor before verdict, and there was no request for the withdrawal of a juror, so they form no legal ground for a new trial. Moreover, as he was discussing the evidence we are not prepared to say that a timely objection could have been sustained.
There is no legal objection to proof of the present value of money payable at a future time: Faber v. Gimbel Bros., 264 Pa. 1; Fletcher v. Wilmington Steamboat Co., 261 Pa. 1; Seeherman v. Wilkes-Barre Co., 255 Pa. 11.
In the motion for a new trial, criticism is also made of the conduct of the trial judge in so freely participating in the examination of the witnesses. In a jury trial the judge has an undoubted right to interrogate witnesses; even jurors may ask questions: Wallace v. Keystone Automobile Co., 239 Pa. 110. The conduct of a trial judge in that regard might constitute such an abuse of discretion as to require a new trial; but here there was no objection to any question asked by the judge, nor request that by reason thereof a juror be withdrawn; hence, the defendant, having taken its chances with the jury, cannot successfully raise such question on motion for a new trial.
The assignments of error are overruled and the judgment is affirmed.
Reference
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- Negligence — Vehicle — Collision with pedestrian — Proximate cause — Intermediate agency — Allegata and probata — Joint wrongdoers. 1. A proximate cause is one which, in actual sequence, undisturbed by any independent intervening cause, produces the result complained of. 2. Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary and natural course of events, though such consequences be immediately brought about by intervening causes, if such intervening causes were set in motion by the original wrongdoers. 3. Negligence may be the proximate cause of an injury of which it is not the sole or immediate cause, as where' it sets in motion some intermediate agency by which the injury is inflicted. 4. In an action to recover damages for the death of plaintiff’s husband, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that, at the time of the accident, an ambulance containing four persons was proceeding along the north side of an avenue, when defendant’s horse, attached to a wagon going south on a cross street, came on the avenue directly in front of the ambulance, which swerved to the south to avoid a collision; that for the same purpose, the horse was turned suddenly to the west; that just at that moment, deceased, who was walking south across the avenue near the west line of the cross street, jumped forward to avoid tha horse, and was killed by the ambulance; and that the whole incident happened in about three seconds. The proximate cause of the accident was the negligent act of driving the horse in the path of the ambulance. 5. Even if the negligence of the chauffeur of the ambulance concurred with that of defendant’s driver, it would not be a defense against the owner of the wagon, inasmuch as an action lies against either of the joint or concurring wrongdoers; nor would it be a defense that the chauffeur by the exercise of skill and judgment might have averted the accident in spite of defendant’s negligence. 6. In such a case, if the statement of claim avers that the negligence of the driver was in the attempt to pass in front of the ambulance, there is no variance between the allegata and the proof. 7. Tbe court committed no error in charging that the jury, in measuring the conduct of defendant’s driver, might consider the fact that, by universal custom and consent, an ambulance sounding its gong and approaching at high speed, is given the right of way. Negligence — Damages—Infant plaintiff-— 0ost of maintencmce of child — Value of money payable in future. 8. In an action by a widow on behalf of herself and a child one year old, to recover damages for the negligent killing of her husband, it is not error for the trial judge to call the jury’s attention to the fact that, as the child grew older, the cost of maintenance would likely increase; and this is especially so in view of the judge’s further instruction that she might go to work at the age of sixteen. 9. - There is no legal objection to proof of the present value of money payable at a future time. Appeals — New trial — Discretion of court. 10. The appellate court cannot review the action of the trial court in passing upon a motion for a new trial, except in case of manifest abuse of discretion. Practice, O. P. — Trial—Improper remarles of counsel — Action of trial judge in examining witnesses — Withdrawing juror. 11. Improper remarks of counsel at the trial, are not a ground for the allowance of a new trial, where they were not objected to at the time, nor before verdict, and there was no request for the withdrawal of a juror. 12. The action of the trial judge in freely participating in the examination of witnesses, cannot be considered as a ground for a new trial, where there was no objection to any question asked by the judge, nor request that, by reason-thereof, a juror be withdrawn.