
    The City of Galion v. Lauer.
    
      Personal injury — Action for damages — Evidence that plaintiff had family, incompetent — Effect on jury prejudicial — Municipal ■ corporation law.
    
    1. In an action against a municipal corporation to recover for injuries caused by a defective sidewalk, evidence that the plaintiff was married and had a family of small children depending on him for support, is incompetent. The tendency of such evidence is to enhance the damages beyond the sum legally recoverable.
    2. Whether or not the presumption would arise from such evidence, alone, that the verdict had been affected thereby, and the evidence therefore prejudicial; yet such presumption should he held to exist where in such case the court said in its charge, that the jury, in 'estimating the damages, might among other matters,' consider the ability of the plaintiff; “ to labor and earn money f * * and to provide for himself and family before and after the accident.”
    (Decided December 8, 1896.)
    Error to the Circuit Court of Crawford county.
    This action was brought by the defendant in error in the court of common pleas of Crawford county, to recover of plaintiff in error on account of injuries received by him by reason of a defective sidewalk. He recovered a judgment in the. court of common pleas, which the circuit court affirmed, on error. The facts will appear in the opinion of the court.
    
      
      B. C. Tracht, city solicitor; J. TF. Coulter and B. TF. Johnston, for plaintiff in error.
    Upon what rule of evidence this testimony was admitted we are at a loss to know. The court by the admission of this testimony when taken in connection with his charge to the jury, seemed to try to impress upon the jury that the measure of damages in this case depended upon the necessities of plaintiff’s family.
    There could be but one possible object in asking these questions- and this would be to work upon the sympathy of the jury, and secure a favorable verdict because of the helpless condition of the family. There could be no other reasons for asking the questions and this would be the only effect the answers could have.
    What effect these answers had upon the jury no one can tell.
    Upon this point we can do no better, than refer to ’ the clear and unequivocal language of Mr. Justice Harlan in the case of Pennsylvania Company v. Joseph E. Boy in the supreme court of the United States. 1 American and English Railroad Cases, page 232.
    When we look to, the charge of the court in the case at bar, it will seem that the jury could not do otherwise than to consider the character and condition of the family in determining- the amount of their verdict if they found for the plaintiff.
    
      J. G. Meuser, Dan Babst, Jrn and Finley, Beer <& Bennett, for defendant in error.
    The plaintiff in error complains that the court below erred in permitting the plaintiff below to prove that he had a wife and children at the time of the accident. This testimony was neither beneficialto the defendant in error nor injurious to the plaintiff in error. It was a matter not in issue. Neither party was bound to prove or disprove it. It did not tend to prove negligence on the part of the plaintiff in error, nor the extent of the injury sustained by the defendant in error. Hence its admission was not reversible error. Whelan v. Kinsley, 26 Ohio St., 137; Reynolds v. Rogers, 5 O., 169; Dickey v. Beatty, 14 Ohio St., 389, 393, 394.
    The case of Pennsylvania Co. v. Roy, 102 U. S., 451, cited by counsel for the city, differs from this case. In that case Roy was injured by the falling of a berth in a sleeping car, and for some time thereafter was incapacitated from performing- his usual avocations. The jury assessed his damag-es at $10,000. Justice Harlan in his opinion says: “This proof,” (that Roy had a wife and children, and their ages), “in connection with the impairment of his ability to earn money, was well calculated to arouse the sympathy of the jury, and enhance the damages beyond the amount which the law permitted ; that is, beyond what was, under all the circumstances, a fair and just compensation to the person suing for the injuries received by him.”
    In the case under review the injury was much more serious than in the case of Roy. Lauer’s leg was badly fractured. He was laid up for a year, and made a cripple for life. The jury only awarded him $2,500. There is no intimation in the brief of counsel for the city that the damages are . excessive. The court will see that they are not even compensatory, and hence the testimon3r objected to did not “arouse .the sympathy of the jury,” and the plaintiff in error was not prejudiced by the act of the court complained of.
   Bradbury, J.

The entry on the journal of the court of common pleas in this case, allowing the bill of exceptions, is similar to that held to be sufficient bjr this court, in the case of the C. C. C. & St. L. Railroad Company v. Kernochan, supra, recently decided.

The bill of exceptions being valid, the questions arising thereon were before the circuit court when the ease was in that court, and are now before this court for determination.

The action was instituted by the defendant in error to recover against the city of Galion, damages claimed by him to have been sustained on account of a defective sidewalk.

During his examination in chief his counsel asked him the following questions: ‘ ‘Had you or had you not, a famity at that time?” Answer: “I had a wife and four children. ” ‘ ‘How old were your children at that time?” Answer: “The oldest was ten years old and the youngest was one year old.”

This evidence was admitted over the objections of the plaintiff in error.

This evidence was not pertinent to the issues joined between the parties. The plaintff’s right of action did not depend upon the question of his marriage, nor upon that of his fatherhood; and the defendant was bound to no higher duty towards a married man or a father than to one who bore neither of these characters. If the right of action existed, the damages lawfully recoverable should be no more affected by those circumstances than the right of action itself.

The only serious question is whether the admission of the evidence was prejudicial to the defendant below, plaintiff in error.

Doubtless this error could have been cured by an instruction, cautioning the jury against increasing the amount of their verdict on account of the plaintiff below having a wife and young children depending on him for support. This, however, was not done. On the contrary the court seemed to be of opinion that the jury might, in fixing the amount of the recovery, take into consideration those circumstances. On this point the instructions were as follows: “You will take into consideration the age of the plaintiff at the time of the accident, his occupation, his ability to labor and earn money and enjoy life and provide for himself and family before and since the accident.” * * * This language would authorize the jury to enhance the damages, because the person injured had a family. The fact that the plaintiff below had a family of young and helpless children depending upon him for maintenance had been put in evidence. We think the natural tendency of that fact was to arouse the sympathies of the jury, and in view of the language employed by the court, the reasonable inference is that the amount of the verdict was increased on account thereof.

This is the view of the question taken by the supreme court of the United States, in Pennsylvania Company v. Joseph E. Roy, 102 U. S., 451. That court, speaking through Justice Harlan, used the following language:

“There was, however, an error committed upon the trial, to which exception was duly taken, but which does not seem to have been remedied by any portion of the charge appearing in the bill of exceptions. The plaintiff was permitted, against the objection of the defendant, to give the number and ages of his children, a son ten- years of age, and three daughters of the ages, respectively, of fourteen, seventeen and twenty-one. This evidence does not appear to have been withdrawn from the consideration of the jury. It certainly had no legitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintiff had infant children dependent upon him for support, and consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well calculated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted; that is, beyond what was, under all the circumstances, a fair and just compensation to the ■ person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to the plaintiff’s family, it is impossible to determine with absolute certainty; but the reasonable presumption is that it had some influence upon the verdict.”

Judgment reversed.  