the expectancy of life of an individual, where that question became material. They were considered of some general value, because, as nearly as could be ascertained, although made up a century ago, they were based on statistics of the general population of two parishes of England, covering a period of about nine years. They were not based on selected lives. In Steinbrunner v. Railway Co., 146 Pa. St. 504, 23 Atl. 239, we first held them admissible. Any one can see at a glance from that opinion that they were admitted because they were not based on selected lives. At the same time it was distinctly stated that they were by no means conclusive; that their value depended greatly on similarity of the life in question to the conditions and habits of those tabulated a century ago. And, while they were declared admissible, Paxson, C. J., who rendered the opinion, at the close of it speaks thus: "While we are unable to see how such evidence is to be excluded, I must be allowed to express the fear that it may prove a dangerous element in this class of cases, unless the attention of juries is pointedly called to the other questions which affect it." Here the only proof tending to show Kerrigan's expectancy of life is that he was 22 years of age, and that he had been a railroad brakeman for about 3 years. His habits and health were not proven. Under such meager facts, the expectancy of life, as fixed by any tables, can have but little weight. Then, as to the tables made up by actuaries of reputable insurance companies, we have no doubt they furnish a fair expectation of life, in the selected lives on which they are based. There was scarcely any proof of facts which brought plaintiff within this class of selected lives. The court says to the jury that the life of a young man of this age, according to the tables, is estimated at 40 to 45 years, and that they could take that as a means of estimation of what would compensate him for his loss. The fair inference that the jury might draw from this statement is that the tables not only were some evidence of plaintiff's expectancy, but that they established it. The tables were not entitled to such weight, unless by precedent proof he had brought himself clearly within the class of selected lives tabulated; and this he had failed to do. We call attention to the care that ought to be exercised by the court in dealing with this sort of evidence in any particular case. In two

Ex

cases since Steinbrunner v. Railway Co., supra, to wit, Kraut v. Railway Co., 160 Pa. St. 327, 28 Atl. 783, and Campbell v. City of York, 172 Pa. St. 222, 33 Atl. 879, we have affirmed the admission of this kind of evidence. perience has demonstrated, however, that what was merely apprehended by Chief Justice Paxson has since been realized. Courts and juries, as a rule, give far more weight to this testimony than it is entitled to. They are apt to supply the place of proof of the particular life by generalization from life tables. This is going further than was intended, or than is warranted. Therefore a halt is called on the manifest tendency to give them undue weight.

As to the annuity tables, they were not admissible at all in a case of this character. Such a table is based on the average anticipation of death, without taking account of capacity to work, indolence, vicious habits, or a tendency thereto, or diminution of ability For example, these tables would answer this question: What is the present worth of $500 per year to one who is now 22 years of age? We recur to the tables to see when he will probably die, and the lump sum or present worth is easily ascertained. This is purely mathematical. The health, earning power, and industry of the particular individual have no place in the calculation. It is based on the assumption that the plaintiff is entitled to enough money down with which he may purchase an annuity for the remainder of his life, and enjoy the same annual sum at 60 or 65 as at 22. We can see how from such a table the present worth of a widow's dower can be computed. Hers is a fixed, annual payment, affected not by age, health, or ability to earn, but only by her death. Her age being known, and her probable longevity being shown by the table, no other fact is necessary. We think that annuity tables throw no light on the essential facts necessary to making up a verdict in an issue of this character, and they should have been excluded.

There is nothing in the remaining assignment of error which calls for notice in this appeal. But, for the reasons stated in the first assignment, and the effect which the jury were permitted to give to the life tables admitted in evidence, as well as for admitting in evidence the annuity tables, the judgment is reversed.

COLVIN V. VENSEL. (Supreme Court of Pennsylvania. Dec. 30, 1899.) HORSE RACING-NEGLIGENCE EVIDENCE.

Where defendant, during a race between defendant's horse and one driven by M., joined in, without invitation, and while attempting to pass between M.'s horse, which had the pole, and plaintiff's horse, which was about five feet behind, ran into the latter, plaintiff's driver cannot be held negligent because of having intentionally drawn nearer the pole, defendant not having secured the middle place, and there being no evidence that such driver had notice that defendant had lost control of his horse, he and others in a position to hear denying that they heard defendant's alleged call to that effect, and it being made in connection with other calls, to which the driver was not bound to give attention.

to enter upon it, and the plaintiff's driver had notice that he had lost control of his horse, it would have been negligent to have attempted to crowd him out by closing the space, and any one doing so would have done it at his peril. But neither of these suppositions is supported by the testimony. The defendant had not advanced to a position between the other drivers, and had not secured any position in the race, and, being an interloper, no one was under any obligation to leave a place open for him. There was no evidence that the defendant's call that his horse was beyond control was heard by the plaintiff's driver. driver denied hearing it, and other witnesses who were in a position to hear all that was said did not hear it. It was made in connection with other calls, to which he was not

The

Action by Lucette Colvin against W. W. Vensel. Judgment for plaintiff. Defendant appeals. Affirmed.

Iams & Brock and J. S. Ferguson, Ior appellant. Jas. S. Young and S. U. Trent, for appellee.

FELL, J. The only question to be considered is whether the court erred in stating in the charge that there was no evidence to justify the jury in finding that the plaintiff's driver had been negligent. As to the main facts there was no dispute. The plaintiff sent her horse, in charge of her driver, to Schenley Park track, for the purpose of racing with a horse driven by Mr. McFadden. When the horses were half around the track, the defendant, uninvited, joined in the race. He entered the track from one side, and came up to the others from behind. As they entered the home stretch, the defendant, whose horse was gaining, attempted to pass between McFadden's horse, which had the pole, and the plaintiff's horse, which was about five feet behind, and, at most, not more than eight or ten feet to the right. His vehicle struck that of the plaintiff, throwing the driver out, and seriously injuring the horse. The question of the defendant's negligence was very carefully submitted. That of the plaintiff's driver was raised by the testimony of the defendant to the effect that when he first attempted to pass between the other horses there was room for

him to do so, but that the space was intentionally closed by the plaintiff's driver, who drew nearer to McFadden's horse; that, when the defendant observed that there was not room for him to pass, he attempted to draw his horse back, and, finding that he could not control him, he called to the plaintiff's driver to give him room, that he could not control his horse; and that, notwithstanding these calls, the driver kept his position. Although the defendant had entered into the race without invitation, if he had advanced so far as to secure the middle place, or if he was about

the testimony or in the circumstances to warrant a finding by the jury that the call was heard, or that the driver knew that the defendant's horse was beyond control. Without this knowledge, there was no negligence on his part in drawing nearer the pole. As neither the facts, nor the inferences to be drawn from them, were involved in any uncertainty, their legal effect was for the court. The judgment is affirmed.

SCHENKEL et ux. v. PITTSBURGH & B. TRACTION CO.

(Supreme Court of Pennsylvania. Dec. 30, 1899.)

STREET RAILWAYS-MOVING DISABLED TROL

LEY CAR-NEGLIGENCE-DAMAGES

-PAIN AND SUFFERING.

1. Where the trolley of a disabled car, which was being pushed by another car, jumped its wire, striking and breaking a cross wire, thus causing the accident to plaintiff, the question of negligence is for the jury, on testimony that the proper course was to tie down the trolley of the disabled car, and that the conductor thereof was told by the conductor of the other so to do, but refused or neglected.

2. Pain and suffering are a distinct item for which damages may be awarded in a personal injury case.

3. The supreme court will grant a new trial on the ground of excessive damages, under Act May 20, 1891 (P. L. 101), only in very clear cases of wrong or injustice, which the court below should have remedied.

Appeal from court of common pleas, Allegheny county.

Action by Henry W. Schenkel and wife, in right of said wife, against the Pittsburgh & Birmingham Traction Company. Judgment for plaintiffs, and defendant appeals. firmed.

Af

A. W. Duff, H. E. Carmack, and John S. Robb, for appellant. Davis & Galbraiths, for appellees.

MITCHELL, J. A disabled car was being pushed by another car behind it, and at South ern avenue, where appellant's line was cross

ed by the Suburban Company at right angles, the trolley pole of the disabled car jumped its own wire, struck and broke the wire of the cross line, and thus caused the accident by which plaintiff was injured. There was testimony that the proper course, under such circumstances, was to tie down the trolley pole of the disabled car, and that in this case the conductor was told by the conductor of the rear and operating car to do so, but he refused or neglected. It was therefore clearly a case for the jury, and the court was right in refusing a peremptory instruction for defendant. The second and third assignments of error are to the charge on the subject of damages for pain and suffering. The learned judge charged that the plaintiff Mrs. Schenkel, "from the mere fact that she has suffered in the past, and, if her story satisfies you of its correctness, will suffer pain and inconvenience for a longer or shorter time in the future, is at least entitled to nominal damages for the injury that is done to her. In view of those In view of those facts, you may take into consideration, and ought to take into consideration, the fact that her future life may be more or less annoyed, and her happiness and enjoyment interfered with, by reason of her physical condition, which prevents her from having those enjoyments that people in good health are accustomed to have, and ordinarily do have. While you cannot undertake to pay her for the injury, for the pain and suffering, you have a right to take into consideration the fact that her future life will be more or less affected by the pain and suffering incident to this accident, and for that she ought to have some allowance." It is claimed that this permitted the jury to give damages for pain and suffering "as a separate and distinct item," and that this is contrary to the rule laid down in Goodhart v. Railroad Co., 177 Pa. St. 1, 35 Atl. 191. But the objection is founded on a misapprehension of that decision. Pain and suffering are a distinct and separate item for which damages may be awarded by the jury, and are so classed in that case. "Damages for a personal injury consist of three principal items: First, the expenses to which the injured person is subjected; * * second, the inconvenience and suffering naturally resulting from it; third, the loss of earning power," etc. The opinion then refers to Owens v. Railway, 155 Pa. St. 334, 26 Atl. 748, where a charge, "If you find for the plaintiff, he is entitled to recover such an amount as will 44 A.-68

compensate him for his pain and suffering,” was held to be correct. In his opinion in Goodhart v. Railroad Co., our late Brother Williams was combating the erroneous practice which was beginning to appear, of suggesting to the jury as a measure of damages what amount of money they or any other third person would individually take to submit to an injury similar to the one before them. See Baker v. Pennsylvania Co., 142 Pa. St. 503, 21 Atl. 979. In so doing he pointed out very clearly that pain and suffering are not capable of exact pecuniary measure, and can have no market price. He then said: "An instruction that leaves the jury to regard it [pain] as an independent item of damages, to be compensated by a sum of money that may be regarded as a pecuniary equivalent, is not only inexact, but it is erroneous. The word 'compensation,' in the phrase, 'compensation for pain and suffering,' is not to be understood as meaning price or value." The last part of this extract is the keynote of it. What the judge meant to condemn as error was not the consideration of pain and suffering as an independent item of damages, for that he had already said they were, in the passage first quoted supra, but that they were to be regarded as such item having a fixed value or equivalent of a market price. In his desire to mark the distinction, he suggests the word "allowance" in place of "compensation" for pain and suffering. But this was merely to make his meaning clear. 'Compensation' is the established, appropriate, more exact, and better word. It is, however, compensation not as a precise equivalent or valuation, nor compensation from a sentimental or benevolent standpoint, but such amount as will be the most reasonable approximation the circumstances admit, to a pecuniary compensation not in the nature of things capable of exact measurement. In the present case the learned judge followed the uniform rule, and the objections to his charge cannot be sustained.

The last assignment is that the court below erred in not setting aside the verdict as excessive. The power of this court to grant a new trial under the act of May 20, 1891 (P. L. 101), is exceptional in character, and only to be exercised in very clear cases of wrong or injustice which the court below should have remedied. Smith v. Publishing Co., 178 Pa. St. 481, 498, 36 Atl. 296. There is nothing in this case to bring it within that rule. Judgment affirmed.

JONES v. FOREST OIL CO. (Supreme Court of Pennsylvania. Jan. 2, 1900.) MINES AND MINERALS-OIL WELLS-MACHINERY - ADJOINING OWNERS - DRAWING OIL FROM ADJOINING LAND - PROPERTY - POSSESSION.

Defendant, having a right to drill for oil and gas on a farm adjoining plaintiff's, cannot be prevented from using a pump which, by its power, draws the oil from plaintiff's land, since defendant has the incidental right to use the most effective machinery, and plaintiff's property in the oil and gas in his land is not absolute until reduced to actual possession by being brought to the surface.

Appeal from court of common pleas, Allegheny county.

Bill by N. D. Jones against the Forest Oil Company. From a decree in favor of defendant, plaintiff appeals. Affirmed.

The following are the findings of fact and conclusions of law of the court below (Frazier, J.):

"The bill in this case was filed for the purpose of restraining the defendant by injunction from using what is known as a 'gas pump' for pumping oil from one of its wells on the Boyce farm, in this county. From the bill, answer, and testimony taken at the trial, we find the following facts: First. The plaintiff is the owner in fee simple of a tract of land situate in Robinson township, this county, generally known as the 'W. H. Kelso Farm,' bounded by lands of Tidball, Boyce heirs, Neely, Schaffer, Linton, Noble heirs, and McCurdy, and containing about 126 acres. That the plaintiff has drilled six oil wells on said farm; two of these wells, known as 'Kelso Nos. 2 and 3,' being located 251 and 204 feet, respectively, from the south line of the farm. That well No. 2 was finished and began producing oil in October, 1891; No. 3 was finished and began producing in November, 1891. Second. That the Forest Oil Company is a corporation of this commonwealth, and, as lessee, has the exclusive right to drill for oil and gas on the farm of the Boyce heirs, which farm adjoins the Kelso farm of plaintiff on the south. On this farm the defendant has completed and is now operating several oil wells,-among them, a well known as 'No. 1 Boyce,' which is located 162 feet from the line dividing the Kelso and Boyce farms, and is 366 feet south from Kelso No. 3, and 560 feet southwest from Kelso No. 2. The well known as 'Boyce No. 3' is located 200 feet south from the line dividing the Kelso and Boyce farms. Third. That the parties hereto have each leased numerous other farms adjoining the Boyce and Kelso farms for oil and gas purposes, and are now, and have been for some time, producing oil and gas therefrom; that the oil is now obtained from all wells in that field by pumping, the daily production of the wells being small. I further find that the sand or rock from which oil is obtained in

this field is of a loose, coarse, gravelly nature. Fourth. That Boyce well No. 1 in the early fall of 1898 was producing from 12 to 15 barrels of oil per day, and that this production gradually fell off until December 1, 1898, when its output was 71⁄2 barrels, and in January, 1899, it was producing less than 1 per day. That in February, 1899, the well was shot and cleaned out, and shortly thereafter there was added to its pumping machinery and apparatus a device known as a 'gas pump.' This device is used by oil operators for the purpose of withdrawing gas from the wells by suction, thereby increasing the well's production of oil. That the distance from which these pumps will draw oil and gas depends upon the nature and quality of the oil-producing sand, its effect being felt to a much greater distance in a course and loose sand than in a hard and compact sand. That about one week after the use of the gas pump was commenced on the Boyce No. 1 the gas supply in Kelso wells Nos. 2 and 3 of plaintiff began to fall off, and shortly afterwards the oil production of these wells was decreased. That, after the use of the gas pump on Boyce No. 1 was discontinued, Kelso No. 2 went back to its former production, and No. 3 is now producing daily as much as formerly, within 55/100 of a barrel, and both wells now have an ample supply of gas. Fifth. The production of the three wells claimed to be affected by the use of the gas pump was as follows: Kelso No. 2, before use of gas pump on Boyce No. 1, 5 barrels in 6 days. Kelso No. 2, while using gas pump on Boyce No. 1, 44 barrels in 6 days. Kelso No. 3, before using gas pump on Boyce No. 1, 34 barrels in 6 days. Kelso No. 3, while using gas pump on Boyce No. 1, 21⁄2 barrels in 6 days. days. Boyce No. 1, before using pump, produced a fraction less than 1 barrel daily Boyce No. 2, while using pump, produced a fraction more than 1 barrel daily. Sixth. That the gas pump has been used in every oil field except that known as the 'Bradford Field,' but that it is not generally used except in failing and almost exhausted territory. That its use by one operator necessitates its use by others in the immediate neighborhood, if they desire to prevent the daily production of their wells from being decreased. That if pumps are placed on all wells the production of the wells is neither increased nor diminished. These pumps can be purchased either in Pittsburg, or at various points in the oil fields, and cost from $50 upwards, according to size. And that the pump used on Boyce No. 1 cost $60. Seventh. That gas pumps were in use in the McCurdy field, the field in which the plaintiff's and defendant's wells are located, before being placed on the Boyce well No. 1, and have been in use in that field for more than one year previous thereto, and are now being used on wells in that field. Eighth. That the farms of plaintiff and defendant, described in findings 1 and 2, lie wholly in what is known as the