Mintz v. Atlantic Coast Line R. Co.

65 S.E.2d 120 (1951)

233 N.C. 607

MINTZ v. ATLANTIC COAST LINE R. CO.

No. 600.

Supreme Court of North Carolina.

May 23, 1951.

*122 John D. Bellamy & Sons, Wilmington, Frink & Herring, Southport, Kirby E. Sullivan, Southport, and Lloyd S. Elkins, Jr., Wilmington, for plaintiff, appellee.

Poisson, Campbell & Marshall, Wilmington, for defendant, appellant.

STACY, Chief Justice.

The defendant has pressed its motion for judgment of nonsuit with vigor and conviction. However, taking the plaintiff's evidence as true and in its most favorable light for her, the accepted position on a motion of this kind, it appears that about three inches of the treads on the stairway were "smooth and slippery, worn extremely smooth and slick, and the outer edge of the tread was worn slick as glass", rendering the stairway unsafe and dangerous. This would seem to carry the case to the jury, even if it be conceded that the remaining evidence of "shaky steps and railing" is too feckless to have any bearing on the issue. Batson v. Laundry, 205 N.C. 93, 170 S.E. 136. It is true the stairway was examined immediately after the plaintiff's fall, and her evidence is disputed, still this was a matter for the jury and not the court. Indeed, the case seems to be one of contradictions in many respects.

A new trial must be awarded, however, for error in allowing the plaintiff to testify, over objection, that since her injury she has been supported by her father and her brothers and sisters. This was incompetent on the issue of damages, calculated to mislead the jury, and it undoubtedly augmented the recovery. Robertson v. Conklin, 153 N.C. 1, 68 S.E. 899, 138 Am.St.Rep. 635, 21 Ann.Cas. 930; Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183; McCoy v. Atlantic Coast Line R. Co., 229 N.C. 57, 47 S.E.2d 532; Alley v. Charlotte Pipe & Foundry Co., 159 N.C. 327, 74 S.E. 885; Wallace v. Western N. C. R. Co., 104 N.C. 442, 10 S.E. 552.

There is nothing in the case to justify a consideration of the plaintiff's pecuniary condition in assessing the damages. The action is to recover for personal injuries arising from the defendant's negligent default and not from any wilful or malicious conduct on its part. Compensatory damages alone are sought, and there is no suggestion that plaintiff's living expenses were materially increased by the injury. Robertson v. Conklin, supra; Reeves v. Winn, 97 N.C. 246, 1 S.E. 448.

The pertinent authorities are epitomized in 25 C.J.S., Damages, § 47, page 526 as follows: "A plaintiff is not entitled to recover for his living expenses during the period of disability occasioned by an injury, where it does not appear that they were increased by the injury; but he is entitled to compensation for an increase in such expenses occasioned by the injury".

One of the authorities there cited is Vedder v. Delaney, 122 Iowa 583, 98 N.W. 373, 375, in which it is said: "Plaintiff, like every other person, is expected to pay for his own board and keeping, and that obligation is not removed by his injury through the negligence of another. It is true that the injury renders him unable for the time *123 being to earn his board, but, if he recovers at all, he recovers compensation for his loss of time, which is the equivalent of wages; and thus, so far as this item is concerned, he is made whole. It may well happen that, by reason of his injured and dependent condition, his expense for board is materially increased, and in such case, doubtless, the enhanced cost may be recovered".

In Graeber v. Derwin, 43 Cal. 495, a new trial was granted for the exact error committed here, and this was the only question considered in the opinion.

The case at bar is not like Perkins v. Spray Wood & Coal Co., 189 N.C. 602, 127 S.E. 677, where the plaintiff was allowed to state that his hospital, doctor, and drugstore bills, occasioned by his injury, were unpaid because of his inability to pay them, and that he had promised to pay them, their reasonableness not being questioned. Allen v. Durham Traction Co., 144 N.C. 288, 56 S.E. 942. The plaintiff's living expenses as distinguished from those occasioned by her injury are not within the measure of damages for her loss. The defendant is required to pay for the loss occasioned by its negligence, not to support the plaintiff during her disability. Blaine v. Lyle, 213 N.C. 529, 196 S.E. 833. The measure of liability in such case is stated in Ledford v. Valley River Lumber Co., 183 N.C. 614, 112 S.E. 421; Helmstetler v. Duke Power Co., 224 N.C. 821, 32 S.E.2d 611; Daughtry v. Cline, 224 N.C. 381, 30 S.E.2d 322, 154 A.L.R. 789; Fox v. Asheville Army Store, 216 N.C. 468, 5 S.E.2d 436; Shipp v. United Stage Lines, 192 N.C. 475, 135 S.E. 339; Fry v. North Carolina R. Co., 159 N.C. 357, 74 S.E. 971; Johnson v. Seaboard Air Line R. Co., 163 N.C. 431, 79 S.E. 690.

It is true, as already stated, the tort-feasor may be liable for any additional expenses reasonably entailed by the injury which perforce are in excess of the plaintiff's personal livelihood or normal support. For example, expenses necessarily incurred for hospital treatment, convalescent care, or recuperative attention. Graeber v. Derwin, 43 Cal. 495; 15 Am.Jur. 547. The challenged testimony in the instant case, however, was addressed to the plaintiff's personal livelihood or normal support. It was, therefore, incompetent and should have been excluded. Tankersley v. Lincoln Traction Co., 104 Neb. 24, 175 N.W. 602, 10 A.L.R. 1510; 15 Am.Jur. 549.

In cases of personal injury resulting from defendant's negligence, the plaintiff is entitled to recover the present worth of all damages sustained in consequence of the defendant's tort. These are understood to embrace indemnity for actual nursing and medical expenses and for loss of time, or loss from inability to perform ordinary labor, or capacity to earn money. Plaintiff is to have a reasonable satisfaction for actual suffering, physical and mental, which are the immediate and necessary consequences of the injury. The age and occupation of the plaintiff, the nature and extent of his business or employment, the value of his services and the amount of his income at the time, whether from fixed wages, salary or professional fees, are matters properly to be considered by the jury. Rushing v. Seaboard Air Line R. Co., 149 N.C. 158, 62 S.E. 890. The award is to be made on the basis of a cash settlement of the plaintiff's injuries, past, present and prospective. Ledford v. Valley River Lumber Co., supra; Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534; Penny v. Atlantic Coast Line R. Co., 161 N.C. 523, 77 S.E. 774; Johnson v. Seaboard Air Line R. Co., 163 N.C. 431, 79 S.E. 690; Fry v. North Carolina R. Co., supra. In assessing prospective damages, only the present cash value or present worth of such damages is to be awarded as the plaintiff is to be paid in advance for future losses. Helmstetler v. Duke Power Co., supra; Murphy v. Suncrest Lumber Co., 186 N.C. 746, 120 S.E. 342. No interest is to be allowed on damages already sustained because amount not fixed or known prior to verdict, i. e., unliquidated, and only the present cash value or present worth of future losses is to be included in the verdict. Penny v. Atlantic Coast *124 Line R. Co., supra; 15 Am.Jur. 579. See Harper v. Atlantic Coast Line R. Co., 161 N.C. 451, 77 S.E. 415, for a different rule in respect of interest when action is to recover for property damage.

As a matter of precaution and to guard against its repetition in the form presently couched, attention is directed to the following portion of the charge:

"The Court charges you, Gentlemen, that the defendant owed to the plaintiff under the circumstances in this case the duty of furnishing to the plaintiff a reasonably safe place in which to perform the duties of the work in which she was engaged at the time and to maintain the stairs in a reasonably safe condition."

It is not the absolute duty of the employer to provide a reasonably safe place for his employee to worksuch would practically render him an insurer in every hazardous employmentbut it is his duty to provide such place in the exercise of ordinary care. Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Owen v. Suncrest Lumber Co., 185 N.C. 612, 117 S.E. 705; Gaither v. E. H. Clement Co., 183 N.C. 450, 111 S.E. 782; Smith v. Seaboard Air Line R. Co., 182 N.C. 290, 109 S.E. 22. This limitation on the employer's duty is not a mere play on words, nor a distinction without a difference, since it constitutes a material fact or circumstance affecting the rights of the parties. Murphy v. Suncrest Lumber Co., 186 N.C. 746, 120 S.E. 342; Tritt v. Gloucester Lumber Co., 183 N.C. 830, 111 S.E. 872; Murray v. Atlantic Coast Line R. Co., supra, and cases there cited. "It is the duty of the employer, in the exercise of ordinary care, to furnish an employee with a reasonably safe place to work". Street v. Erskine-Ramsey Coal Co., 196 N.C. 178, 145 S.E. 11, 13.

There are other exceptions of moment appearing on the record, which we do not reach, as they are not likely to arise on the further hearing.

Whether the verdict should be set aside for excessiveness is ordinarily addressed to the sound discretion of the trial court. Edmunds v. Allen, 229 N.C. 250, 49 S.E.2d 416. See 15 Am.Jur. 649 et seq.

For the error as indicated, a new trial must be awarded. It is so ordered.

New trial.