Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
This is a survival action*fn1 brought by the administrator of the estate of Augustus Howard Cooper against the City of Chester, Pennsylvania.*fn2 The jury returned a verdict in favor of the plaintiff for one dollar.
The administrator's decedent died when an automobile in which he was a passenger plunged from the dead-end of Norris Street - a public street maintained by the City of Chester - into the Delaware River. The accident occurred shortly after 2 A.M. on May 20, 1955.
The plaintiff's theory and proofs were that the City of Chester was negligent in that another car had driven into the river at the same place in the preceding year; that there was no barrier of any sort between the street and the river, nor were there any warning signs or adequate lighting of the street.
The City contends that the accident was a consequence of the driver's sole negligence. The plaintiff called as his witness the driver of the automobile - Alfred J. Thompkins - and asked him fourteen short questions identifying him as the driver and describing the circumstances of the accident and the condition of the street. On cross-examination, which extended over almost one-quarter of the transcript, the defendant asked a long series of questions concerning the purchase by the decedent and another passenger of a bottle of whiskey and visits by the driver to "bars and taprooms."*fn3 These questions were continually objected to by the plaintiff but the objections were overruled.*fn4 However, after all of the evidence was submitted the trial judge, in ruling on requests for charge stated to counsel in the presence of the jury:
"* * * there is no evidence in this case which would warrant the jury in finding unfitness on the part of either the driver of the car or the decedent.
"So, gentlemen, I am ruling that out of the case completely, and you will guide yourselves accordingly in your arguments to the jury."
At the end of the cross-examination of the driver, Thompkins was asked, over objection, whether he had ever been convicted of the felony of dispensing and possessing narcotic drugs and Thompkins answered that he had been convicted in March, 1957.
The evidence showed that the decedent was twenty years old at the time of his death; he had always been in good health; and had been a member of the Y.M.C.A. and active in church work. He was graduated in June, 1953 from Chester High School where he had been a member of the student council. During three of his summer vacations while attending high school, he had obtained temporary employment. After graduation he anticipated entry into the military service and obtained "pick-up" jobs such as cutting grass, tending gardens and washing windows. However, in the summer of 1954 he went to work for a laundry in Atlantic City, New Jersey until February, 1955. While in Atlantic City he lived with his aunt and paid for his own room and board.
From the last week of February, 1955 until the time of the accident the decedent was unemployed. Just prior to the time of his death he expressed an intention to return to Atlantic City and resume employment with the laundry.
During 1954 decedent's gross earnings were $1,550.00. He earned $127.00 between January 1, 1955 and May 20, when he died.
The trial judge charged the jury that under Pennsylvania law, if liability of the City were found, damages would be measured as the present value of the decedent's "loss of earning power" less what it would have cost him to maintain himself in housing, clothing, food, and some recreation for the periods from the time of death to the end of the trial and from that date to the end of the decedent's normal life expectancy.
After the jury retired it returned with the question: "As a result of your charge to the jury may we come out with a verdict for the plaintiff with no dollar award because the maintenance would about equal the total earnings?"
The trial judge answered: "Eliminating the word 'about', if you found that the cost of maintenance would equal the earnings, you would then have found that the plaintiff had not met his burden of proving damages and your verdict would be in favor of the defendant. If it is 'about' and there is any surplus of earnings over cost, your verdict would be for the plaintiff in that amount."
After retiring again the jury asked the following question: "May we give to the plaintiff and only award one dollar as damages?" The trial judge answered: "* * * you may give any amount which you ...