Waina v. Pennsylvania Co.

Citations

• 251 Pa. 213
• 96 A. 461
• 1915 Pa. LEXIS 660

Syllabus

<p>Negligence — Railroads—Master and servant — Comparative negligence — Contributory negligence — Federal Employers’ Liability Act of April 22,1908, Ch. UJ), 85 TJ. 8. Stat. 65 — Court and jury.</p> <p>1. In an action under the Federal Employers’ Liability Act of April 22, 1908, Ch. 149, 35 U. S. Stat. 65, which provides that (Section 3): “In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to any employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damage shall be diminished by the jury in'proportion to the amount of negligence attributable to such employee,” the jury should first determine whether or not the defendant is guilty of causal negligence; if that issue is determined in favor of plaintiff, they should then consider whether plaintiff was guilty of contributory negligence and if they decide that issue against plaintiff, then, looking at the combined negligence of the plaintiff and defendant as a whole the next subject to consider is in what ratio should the combined negligence be distributed between the parties to the accident; they should then determine the’amount of damages suffered through the combined negligence and deduct therefrom a portion corresponding to the measure of negligence charged by them to the plaintiff, the balance to be awarded as damages to the plaintiff.</p> <p>2. While charging the jury in cases of this kind the trial judge should avoid stating any definite amounts or proportions by way of illustration or otherwise; so as to avoid all possibility of the triers conceiving that the amounts or proportions named reflect the judge’s attitude toward the case.</p> <p>3. The mention of certain proportions by the judge in his charge by way of illustration is not reversible error where no complaint was made t