Menarde v. Philadelphia Transp. Co.

• Citation: 103 A.2d 681,376 Pa. 497
• Parties: MENARDE v. PHILADELPHIA TRANSP. CO.
• Decision Date: 22 March 1954
• Court: United States State Supreme Court of Pennsylvania

103 A.2d 681

376 Pa. 497

MENARDE v. PHILADELPHIA TRANSP. CO.

Supreme Court of Pennsylvania.

March 22, 1954

Action in trespass by street car passenger for injuries sustained when premature starting of the street car, while passenger was alighting, caused passenger to fall forward into the street. The Common Pleas Court, No. 7 of the County of Philadelphia (tried in C.P. No. 4), as of June term, 1949 No. 3145, John Morgan Davis, J., denied transportation company's motion for new trial on passenger's remittitur of all of jury's verdict in excess of $25,000 and the transportation company appealed. The Supreme Court No. 251, January term, 1953, Chidsey, J., held that causal connection between the accident and the appearance of cancer in passenger's breast in the same location as a bruise sustained in the accident, was sufficiently established by medical testimony.

Affirmed.

James L. Stern, Jay B. Leopold, Philadelphia, for appellant.

B. Nathaniel Richter, Richter, Lord & Farage, Philadelphia, for appellee.

Before STERN, C, J., and STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.

CHIDSEY, Justice.

Plaintiff, Anita Menarde, brought an action in trespass against the Philadelphia Transportation Company which resulted in a verdict in her favor in the amount of $50,000. Defendant filed a motion for new trial which was denied if plaintiff remitted all of the verdict in excess of $25,000. Such remittutur was filed and judgment entered in the amount of $25,000, from which defendant appeals. Defendant's negligence and plaintiff's freedom from contributory negligence are not questioned in the appeal and the only matters before us concern trial errors relating to the items of damage recoverable and certain alleged prejudicial remarks of plaintiff's attorney.

On the morning of May 16, 1949 the plaintiff was injured while alighting from a street car of the defendant. The accident occurred due to the premature starting of the trolley car which caused plaintiff to fall forward into the street. Treatment for injuries to her left ankle, right knee and both hands was administered at Mt. Sinai Hospital; these being the only injuries perceptible at that time. Her family physician, Dr. Martin J. Koebert, attended her in the early evening of the same day to alleviate any remaining pain or shock.

Upon disrobing later that evening for the first time following the accident, plaintiff noticed a discoloration on her right side, including her breast. She recalled Dr. Koebert the following day because the bruised right breast had grown slightly darker over night. He examined the breast and observed the discoloration but having discovered no nodules or lumps, he was not overly concerned and merely prescribed the application of hot compresses to the bruised area. For the first month or two following the accident Dr. Koebert made periodic examinations of the breast and sometime within that interval the discoloration disappeared and the breast seemed perfectly normal and remained so for two months. At the end of July or the beginning of August plaintiff detected a lump on her breast at the exact spot where there was discoloration previously. She was referred to Dr. Sidney Beck, a cancer specialist, who recommended and performed a radical mestectomy, which entailed the removal of the entire breast and the underlying muscles and the tissues in the arm pit.

At the time of the accident the plaintiff was unmarried, thirty-seven years of age and in good health. Prior to that time she had studied the piano, dancing, dramatics, voice culture and two foreign languages with the expectation of becoming a professional singer. She held a scholarship in the Settlement Music School and The Philadelphia Musical Academy and sang at various church functions, earning approximately $400 or $500 a year.

The principal point urged on appeal is that plaintiff failed to meet her burden of establishing by legally competent evidence a causal connection between the accident and the cancer which later developed.

In order to link her impaired physical condition to the defendant's conduct, the plaintiff was forced to depend on expert medical testimony because scientific knowledge was required for the elucidation of the question. Having selected experts to speak in her behalf, it has been held essential that no absolute contradictions appear in their ultimate conclusions, although minor points of difference between such witnesses would not necessarily exclude their testimony. Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 61137 A. 104.Moreover the expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence. Vorbnoff v. Mesta Mach. Co., 286 Pa. 199, 206, 133 A. 256; Powell v. Risser, 375 Pa. 60, 68, 69, 99 A.2d 454; Wargo v. Pittsburgh Railways Company, 376 Pa. 168, 172, 101 A.2d 638.

Applying these tests to the present case, in our opinion the medical testimony offered in support of the claim met the required standard and was not so contradictory that the finding of the jury was predicated upon speculation. Dr. Koebert, who was associated with the plaintiff's case from the time of the accident, testified on direct examination that in his opinion the injury was the direct cause of the cancer, and the salient portions of his testimony on cross-examination are as follows:

‘ Q. Could there possibly have been something else which contributed to this cancer? A. I do not think we are able to say.

‘ Q. Can we say that this particular bruising or injury, to the exclusion of everything else, caused this cancer? A. I believe other conditions which had happened, and according to the highlights of the case as I examined her originally, and in that it arose in that immediate area, I believe that this cancer was caused directly by the injury.

‘ Q. Is it not possible that something else contributed to it? A. Within the knowledge of man, I think not. * * *

‘ Q. Would you say that it is impossible that there was any other thing that could have caused this cancer other than the blow? A. In this case I would say not.’

On redirect examination he was asked: ‘ Q. Doctor, is there even the slightest idea of speculation in your mind as to the judgment you have come to in concluding that this accident caused this cancer in this girl's body? A. I believe that this accident was the direct cause of this woman's cancer. Q. And is that judgment based on any speculation whatsoever in this case? A. Not in this case, no.’

Dr. Beck, the other expert called by the plaintiff, was in charge of the breast cancer clinic at the American Oncologic Hospital in Philadelphia. Basing his ultimate conclusion on certain accepted criteria, which he asserts were present in this case, he testified that he must conclude that the trauma sustained in this accident caused the cancer. While it may be said that his testimony was characterized by some indefiniteness or uncertainty, such testimony pertained principally to the cause of cancer in general and the disparity of opinion which exists among outstanding authorities in this field as to whether a single trauma can produce cancer. Where, as here, a person who has enjoyed prior good health sustains an injury to a particular member and some three months thereafter a malignant nodule appears in precisely the same location as the bruise, and two doctors concluse that the cancer resulted from the trauma, causal connection between the accident and the disease is sufficiently established. See Smith v. Primrose Tapestry Co., 285 Pa. 145, 131 A. 703.

In the Mudano case, supra, the medical experts flatly contradicted each other as to whether the ulcerated condition of the plaintiff's hell resulted from the accident. Unlike the instant case, the medical proof was totally irreconcilable. Dr. Koebert and Dr. Beck did not differ in their ultimate conclusion that the precise traumatism caused the injury. Since their statements exhibit no absolute contradiction respecting the fundamental issue, it was legally competent evidence and was properly submitted to the jury.

Defendant's second contention that the trial judge committed fundamental error in his charge is clearly untenable. The particular portion complained of reads as follows: ‘ Plaintiff is entitled to recover for all the injuries caused by defendant's negligence. This question of causation of the particular injuries complained of is for you, the Jury, to determine from the evidence before you. For the defendant to be liable for plaintiff's injuries, you need not find that defendant's negligence was the sole cause of such injuries. A wrongful act may be the legal cause of damage though other causes may have joined in producing the final result. It is sufficient if you find that defendant's conduct, or negligence, was a substantial factor in bringing about the injury complained of. That is, if you determine that defendant's negligence was either the sole cause or a substantial contributing cause of the injury, plaintiff is entitled to recover. The fact that some other factor may have been a contributing cause with the negligence of the defendant does not relieve the defendant from liability unless defendant shows that such other cause would have produced the injury complained of independently of his negligence. And, even though concurrent causes may have contributed to plaintiff's injury, if defendant's negligence was a substantial factor in producing the result, in contributing to the injury, defendant is liable for the full amount of...