Becker v. Philadelphia Rapid Transit Co.

• Decision Date: 22 May 1914
• Docket Number: 381,382
• Parties: Becker v. Philadelphia Rapid Transit Company, Appellant
• Court: Pennsylvania Supreme Court

91 A. 861

245 Pa. 462

Becker v. Philadelphia Rapid Transit Company, Appellant

Nos. 381, 382

Supreme Court of Pennsylvania

May 22, 1914

Argued April 1, 1914

Appeals, Nos. 381 and 382, Jan. T., 1913, by defendant, from judgment of C.P. No. 1, Philadelphia Co., March T., 1910, No 3808, on verdict for plaintiff in case of Anna Ruth Becker by her next friend and father David Becker, and David Becker, individually, v. Philadelphia Rapid Transit Company. Reversed.

Trespass to recover damages for personal injuries. Before KINSEY, J.

The opinion of the Supreme Court states the facts.

Verdict for Anna Ruth Becker for $2,250, and for David Becker for $250, and judgment thereon. Defendant appealed.

Errors assigned, among others, were in refusing to withdraw a juror and continue the case, because of an alleged improper remark by plaintiff's counsel, and the third and fourth assignments of error which were as follows:

3. The learned court below erred in overruling defendant's objection to the questions and answers on direct examination of plaintiff's witness, Dr. Bochroch, and in admitting testimony as follows:

"Q. Will you give us the results of each examination afterwards; when you saw her, and give us the results of each?

"A. I will give you the result on last Sunday. The subjective examination was, that she slept poorly at night --

"Q. When was that examination?

"A. On Sunday morning.

"Q. Last Sunday morning?

"A. Yes, sir.

"Q. October 26th?

"A. Yes, sir. She says she cannot work; she says -- she volunteered the statement that she constantly felt tired, and she specially felt tired in the a.m. -- in the morning on arising. She still complained of passing urine frequently --

"Mr. Smyth: This is all objectionable, as they are statements made several years after the accident."

(Objection overruled.)

(Exception for defendant.)

(Witness continuing.) "She told me that -- volunteered the statement. There was no objective symptoms of those. Now, the objective symptoms were these: All these muscles reflexes were still exaggerated -- both the upper and lower extremities; her left pupil is still larger than the right; the limitation of the field of vision has very largely disappeared, and is distinctly better. She has a gross tremor of the tongue. When the tongue is protruded, there is a distinct tremor there. Her pulse is eighty. Her knee jerks are very markedly increased. She has cold hands and feet, and moving her backward and forward causes pain; that is, she has increased pain when moving this woman backward and forward, and it causes a rapidity of the pulse."

4. The learned court below erred in overruling the defendant's objection to the question of plaintiff's counsel on examination in chief of plaintiff's witness, Dr. Bochroch, and admitting testimony as follows:

"Q. Taking the history of the case as given to you, and the evidence that you have heard here, would you be able to state as to what is the cause of her condition as you found it at the present time, or as you found it in May, 1911?"

(Objected to by Mr. Smyth.)

(Objection overruled.)

(Exception for defendant.)

By Mr. Smyth: "Q. That also includes what she told you, does it?

"A. That is better. Do you include that?

"By Mr. Harris: Q. Yes, I will include that.

"A. Yes, sir; she could have this traumatic neurasthenia from that accident."

Judgment reversed and a venire facias de novo awarded.

David J. Smyth, for appellant. -- The reflection of the plaintiff's counsel upon the integrity of the medical expert was unjustifiable, and it was the duty of the trial judge to withdraw a juror, when requested so to do by defendant: Freeman v. Wilkes-Barre & Wyoming Valley Traction Co., 36 Pa.Super. 166; Saxton v. Pittsburgh Ry. Co., 219 Pa. 492; Brown v. Electric St. Ry. Co., 43 Pa.Super. 61; Holden v. Penna. R.R. Co., 169 Pa. 1; Wagoner v. Hazle Twp., 215 Pa. 219.

The objections to the hypothetical questions should have been sustained: Gillman v. Media Electric Ry. Co., 224 Pa. 267; Rouch v. Zehring, 59 Pa. 74.

Bernard Harris, with him William M. Lewis, for appellees. -- The refusal of the trial judge to withdraw a juror at the request of defendant's counsel was not an abuse of discretion: Com. v. Ezell, 212 Pa. 293; Phoenix Brewing Co. v. Weiss, 23 Pa.Super. 519.

Before FELL, C.J., POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE ELKIN:

This is an action in trespass to recover damages for personal injuries resulting from the collision of two cars operated by the defendant company, in one of which cars the plaintiff Anna Ruth Becker, was a passenger. At the trial there was no attempt to defend against the negligence charged, and the case was made to turn upon the extent of the injuries sustained. For this purpose medical testimony was introduced to show the extent and character of the injuries and how the plaintiff was affected thereby. The defendant called a physician who had examined the plaintiff, and this witness testified in detail as to her condition. There was nothing in his testimony to indicate that he was unfair in his statements or biased in his professional judgment. His testimony was straightforward and no attempt was made to impeach his veracity. This was the situation at the close of the testimony when counsel proceeded to argue the case to the jury. In his argument counsel for plaintiffs severely criticised the testimony of the physician called by defendant, saying among...