Leitzell v. Delaware, L. & W. R. Co.

• Decision Date: 06 July 1911
• Docket Number: 60
• Citation: 232 Pa. 475,81 A. 543
• Parties: Leitzell v. The Delaware, Lackawanna & Western Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

81 A. 543

232 Pa. 475

Leitzell v. The Delaware, Lackawanna & Western Railroad Company, Appellant

No. 60

Supreme Court of Pennsylvania

July 6, 1911

Argued April 13, 1911

Appeal, No. 60, Jan. T., 1911, by defendant, from judgment of C.P. Columbia Co., Dec. T., 1909, No. 86, on verdict for plaintiff in case of Melvin A. Leitzell v. The Delaware Lackawanna & Western Railroad Company. Reversed.

Trespass for personal injuries. Before EVANS, P.J.

Plaintiff was injured on August 26, 1909, while working as a brakeman on a freight train of the defendant railroad through the breaking of a board cover on a sluiceway crossing under the tracks.

The opinion of the Supreme Court states the case.

Verdict for plaintiff for $7,000 and judgment thereon. Defendant appealed.

Errors assigned were various rulings of the court on points for charge, including the point quoted in the opinion of the Supreme Court.

The judgment is therefore reversed, with a venire facias de novo.

J. H Oliver and H. M. Hinckley, with them A. C. Jackson and D. R. Reese, for appellant. -- The plaintiff in this case cannot recover for permanent injuries when the undisputed evidence is that he would in all probability be entirely cured by a simple surgical operation, and that the only risks in connection with such operation are the usual incidental risks present at every operation: Mattis v. Traction Co., 6 Pa. Dist. Rep. 94; Bailey v. Centerville, 108 Iowa 20 (78 N.W. 831).

Fred Ikeler, with him Clinton Herring, for appellee. -- The court properly submitted the character of the operation required and its probable results, to the jury: Kehoe v. Traction Co., 187 Pa. 474; Bailey v. Centerville, 108 Iowa 10 (78 N.W. 831).

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

OPINION

MR. JUSTICE POTTER:

The only question raised by this appeal is as to the basis upon which the damages for the injury sustained by the plaintiff should be computed. Evidence upon the part of the plaintiff was offered tending to show that the injury to his knee is permanent; and that it will be so unless a surgical operation be performed, was practically conceded. Upon the part of the defendant, there was evidence tending to show that the injury could be cured by a surgical operation, to which a reasonably prudent man ought to submit; and it was contended that by reason of that fact, in estimating the amount of the damages the injury should not be regarded as necessarily permanent. The theory of the defendant in this respect was formulated in the third point for charge presented by counsel, as follows: "If the jury believe that the condition of the plaintiff can be relieved, by a simple surgical operation, which an ordinarily prudent man would undergo, such facts must be taken into consideration as an element which would reduce the amount of damages to which the plaintiff would otherwise be entitled." The trial judge answered this point by saying, "The point is affirmed, providing the jury find that the proposed surgical operation is not a serious or dangerous one, and one that can be performed without any risk of failure or danger to the plaintiff. Otherwise, it is refused." We think the point should have been affirmed without qualification. It...