Machen v. Railway Co.

Opinion by William W. Porter, J., In this case Sarah A. Machen has recovered a judgment of $1,500 and her husband a judgment oi $500 for damages for injuries suffered by Mrs. Machen at the hands of the defendant company. The first specification of error is the denial of the court below of a request for binding instructions for the defendant company. Mrs. Machen, on the evening of December 18, 1897, was a passenger on one of .the cars of the defendant company. When the car arrived at Island avenue and Chartiers street, it stopped. She prepared to alight, having a heavy market basket and one or more bundles. She descended to the street, leaving her basket upon the platform. She was somewhat impeded by two [645] passengers entering the ear. While attempting to remove her basket from the platform, the car started. She was struck in the back and injured. The conductor at the time of the accident was not upon the platform. He had gone forward to ascertain whether a crossing could safely be made of certain steam railroad tracks. He returned, and (as he alleges), upon seeing Mrs. Machen upon the ground and free of the car, motioned the motorman to proceed. The duty of the persons in charge of the car was to give Mrs. Machen a reasonable opportunity to alight with her bundles. The performance of this duty was explicitly denied by Mrs. Machen. This question was submitted to the jury: “Was the plaintiff allowed a reasonable time to get herself and her bundles off this car before the car was started? ” This was a palpable issue of fact which it would have been error to withhold from the jury. There was no fixed measure of care which could be declared by the court as matter of law: Bensing v. Railway Co., 9 Pa. Superior Ct. 142. The first specification is, therefore, dismissed. The remaining specifications (save the sixth) complain of insufficient and inadequate instructions on the part of the trial judge. It is a difficult thing for a trial judge to so measure out his charge that it may not be subject to the criticism of one or the other of the parties, because of undue brevity or unreasonable length. If he shall have clearly and fully stated the issues and instructed the jury upon the law bearing upon the evidence, as a general rule, he has performed his duty. Specific instructions may be deemed necessary by either party. If so, a request is the method by which to elicit such instructions. Here, there was no prolonged trial during which portions of the evidence might have been forgotten or been confused by the jury. There was no great involution of facts. There were no abstruse principles of law involved. There was but the issue of fact, above quoted, which was submitted with brevity and point. Errors of omission in a charge are generally not so grievous as those of commission. It has been held that error cannot he assigned of what was not said by the trial judge, and that this rule ought never to be transgressed except in flagrant cases, where the omission plainly operated positively to mislead the jury: Burkholder v. Stahl, 58 Pa. 371. Again it is said in Fox v. Fox, 96 Pa. 60, that nothing is better settled than that error cannot be [646] assigned for an omission of a judge to charge in a particular way, unless his attention was called to it by a special request. The sixth specification complains that the court charged that ‘ the wife is entitled to an allowance for the pain and suffering, which she has endured by reason of this injury. This is all that she is entitled to,” and that the effect of this was to allow pain and suffering as an independent item of damage. What is said in Goodhart v. R. R., 177 Pa. 1,15, and Todd v. Traction Co., 192 Pa. 587, has not the significance sought to be imputed by this appellant. The language used means only that pain is not an item of damage susceptible of being compensated by a precise pecuniary equivalent; that it has no market value; that it is but a basis of damage for which recovery may be had by way-of allowance in reasonable amount, determinable by the jury: Bamford v. Pittsburg, etc., Co., 194 Pa. 17. Aside from this, however, in this case the damages of the husband and wife, for the wife’s injury, were determined under the same charge. The two verdicts worked an apportionment of the total amount of damages and together included the expenses, the loss of services and the bodily pain and suffering. Under the circumstances the defendant company suffered no injury. The specifications are dismissed and the judgment is affirmed.