#### Blendinger *v.*Souders.

Where the charge of the court gives a correct exposition of the law governing damages, it is not error for the judge to remark that he could not do better than by merely referring to the argument of counsel for plaintiff, as indicating the true rule. '

A contractor cannot escape liability for his own negligence by interposing the orders of an architect.

Nov. 2, 1888.

Error, No. 40, Oct. T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict in favor of the plaintiff, in an action on the case, by Thos. F. Souders and Edward Souders, minor children of Francis M. Souders, deceased, by their next friend Thomas Burns, against George Blendinger, to recover damages for the death of their father, caused by the alleged negligence of the defendant, at March T. 1887, No. 295. Paxson, J., absent.

The declaration alleged that “ the said defendants, at the time of the wrong hereinafter complained of, were constructing a large brick building [for the 'Keystone Brewing Co.], fronting on Carson street, between 33d and 34th streets, 24th ward, city of Pittsburgh, of imperfect materials and defective dimensions and foundations, and so negligently and carelessly caused the walls of said building to be erected and constructed, and that, too, at an improper season of the year and according to defective plans and specifications, well knowing that said wall, fronting on Carson street, was bad, defective and *49dangerous, yet the said defendants, well knowing their duty in this behalf, did, during the months of January and February, 1886, and before and since, carelessly and negligently cause to be erected such a dangerous, imperfect and defective wall fronting on Carson street as aforesaid, that a large portion of the said wall, fronting on Carson street, a public highway of the city of Pittsburgh, fell on February 11, 1886, upon Francis M. Souders, who was lawfully upon said highway, and so crushed and injured the said Francis M. Souders, father of the plaintiffs, that afterwards, to wit, on Feb. 14, 1886, he died, leaving to survive him his two minor children, the plaintiffs, who lost the comfort and support and pecuniary benefits, which, but for the negligence of the defendants, they would have had, and have suffered damage in the sum of twenty thousand dollars and therefor bring suit.” The pleas are not given in the paper-books.

The charge of the court, on the measure of damages, was as follows, by Stowe, P. J.:

“ If you find for the defendant, you merely say you find for the defendant. [If you think the plaintiff ought to have a verdict, you come to the question of damages; and I don’t think I can do bet-,, ter than merely to refer to the argument of Mr. Marshall as indicating the true rule.] There is nothing here that would justify, nor does the plaintiff pretend to ask, anything in the shape of punative or punishing damages. The simple value of this man’s life to his children, and, as has been said, that is. a very uncertain and difficult matter to determine. To a certain extent it is a matter of speculation, but it has, and all lives have, and must have, in court, some money value. The jury ought not to go on the presumption that a man will live 100 years, or 80 years; or yet on the presumption that typhoid fever is very bad in his neighborhood, and he will die of it, or some other epidemic disease. Taking a large number of lives, they have an average length which is recognized by insurance companies. You don’t expect to die to-morrow, or next week, or next year. The probabilities are some of us may die within a year, or two or three years. The probabilities are that most of us may live for many years. You have got to take the probabilities; say this man made so much money a year, and he would probably have saved so much; the expectation or probabilities of his life amount to so much; and, upon the whole, agree upon some amount that is satisfactory to yourselves as being a fair average to compensate these children for the loss of their father, and, when you have done that, you have done everything a jury can do, and, doing it conscientiously, we have got to take the result; and, as a general rulé, we find juries arrive at as fair an estimate as it is possible for any set of men to arrive at under similar circumstances.”

The defendant presented the following point:

“ If -the jury believe, from the evidence, that the defendant, under his contract with the Keystone Brewing Co., was bound to lay the brick, in the wall that fell upon decedent, in accordance with the *50plans and specifications mentioned in said contract, and under the supervision of the architect of said company, Wm. Grieser; and if the jury further believe, from the evidence, that defendant did build and erect the said wall according to said plans and specifications, and, under the circumstances, so far as he could judge, ordinarily in a proper and workmanlike manner [relying upon the skill of said architect, who, in the absence of proof to the contrary, is presumed to be a competent and ordinarily skilled architect] ; then the verdict should be for defendant. *Ans.*Affirmed — striking out the part in brackets. With that part in the point, it seems to mean that, relying upon the architect and doing the work according to his direction, will protect the defendant for defective work. If that is meant, the point is refused.”

Verdict for plaintiff for $3800 and judgment thereon.

*The assignments of error*specified, 1, the portion of the charge included within brackets, quoting it; and, 2, the answer to defendant’s point, quoting the point and answer.

*John S.*Ferguson, with him *A. J. Kirschner,*for plaintiff in error.

—It was error to adopt the remarks of counsel as the rule for damages. The gestures of the speaker, the intonations of his voice, the emphasis of his words, the extravagance of his illustrations all are before the jury, and to add to the speech of counsel the unqualified endorsement of'the court, in such general terms as was done in this case, is to give to the plaintiffs’ counsel a power with the jury which is manifestly of immense advantage to his cause.

If the court had said to the jury that they might give such damages as the evidence would warrant, without giving them any rule or standard for their guidance, it would have been error. Gilmore *v.*Hunt, 66 Pa. 321.

In this case the rule or standard was the unreported speech of plaintiff’s counsel. It has been ruled that if the judge’s remarks on the weight of the testimony may have misled the jury as to its force and effect, it is ground for reversal. Connelly *v.*Walker, 45 Pa. 449-

The duty of the contractor was to exercise ordinary care and prudence. To rely on the architect was evidence of the exercise of ordinary care and proper for the consideration of the jury in that respect.

*A: M.*Imbrie, of *Marshalls & Imbrie,*for defendant in error.

—The casual remark that the rule of damages had been well stated by counsel was not error. The charge of the court was in affirmance of the position of counsel.

The verdict itself is abundant evidence that no evil effect was experienced by the defendant from the charge, the verdict being much below what might fairly have been assessed under the evidence.

*51Jan. 7, 1889.

Per Curiam,

The first assignment of error contains a mere excerpt from the court’s charge, which charge, when taken as a whole, contains a sound exposition of the law governing damages in a case of this kind, and the reference to the counsel’s argument did the defendant no harm.

The complaint in the second assignment is without foundation, for if there is any fault to be found with the answer to the defendant’s point, as therein set forth, it is that it was more favorable to him than it should have been, for we are not disposed to adopt the doctrine that a contractor may build a defective and dangerous wall, which, by its fall, kills some one, and escape the consequences of his own act by interposing the orders of an architect.

Judgment affirmed.