Mudano v. Philadelphia Rapid Transit Co.
| Decision Date | 14 March 1927 |
| Docket Number | 131 |
| Citation | 289 Pa. 51,137 A. 104 |
| Parties | Mudano v. Phila. Rapid Transit Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 2, 1927
Appeal, No. 131, Jan. T., 1927, by defendant, from judgment of C.P. No. 1, Phila. Co., Sept. T., 1925, No. 6640, on verdict for plaintiff, in case of Joseph Mudano v Philadelphia Rapid Transit Co. Reversed.
Trespass for personal injuries. Before McDEVITT, J.
Verdict and judgment for plaintiff for $14,000. Defendant appealed.
Errors assigned were various rulings and instructions, quoting record.
The judgment is reversed, and it is ordered that the record be returned to the court below with directions to reinstate the motion for a new trial and reduce the verdict in such a reasonable amount as in its opinion will make due allowance for the improper award of damages contained therein, that tribunal's order to this effect to contain an option to both plaintiff and defendant to accept the reduction or a new trial; if the diminution of verdict is accepted by both parties, the court below may discharge the rule for a new trial and enter judgment in plaintiff's favor, otherwise the rule must be made absolute.
James Francis Ryan, with him J. J. K. Caskie, for appellant. -- The testimony as to the infection of plaintiff's foot should not have been submitted to the jury: McCrosson v. P.R.T Co., 283 Pa. 492; Vorbnoff v. Machine Co., 286 Pa. 199; Albert v. P.R.T. Co., 252 Pa. 527; Kelly v. Coal Co., 272 Pa. 39.
Stanley Folz, of Sundheim, Folz & Kun, for appellee.
Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART and SCHAFFER, JJ.
The accident that gave rise to this case happened August 29, 1924. Joseph Mudano, plaintiff, in the course of some work he was doing on a public highway, held upright a heavy manhole cover, which, being struck by one of defendant's cars, fell on plaintiff's right heel, causing a compound fracture of the "os calcis" (the bone of the heel).
On the evidence at the trial under review, the questions of defendant's negligence and plaintiff's alleged contributory negligence were for the jury; hence it would serve no useful purpose to discuss those phases of the controversy. The real point before us concerns the legal sufficiency of plaintiff's expert medical testimony to sustain the verdict on which judgment was entered in his favor.
The right to recover a material portion of the damages sought by plaintiff depends on a determination of the question whether certain serious physical conditions of which he complained, with their accompanying pain, suffering, inconvenience and expense, were properly attributable to the injuries received by him at the time of the accident. Of course, plaintiff was obliged to prove that every harmful result, for which he claimed damages, arose out of defendant's negligence; whereas an independent cause to which the results here in question might be attributed, appeared by evidence produced in plaintiff's own case, as we shall show more in detail later on in this opinion. For the present, it is enough to state that, in December, 1925, more than 16 months after the accident, an ulcer formed on Mudano's heel, and this led to the serious physical conditions and harmful results which we have mentioned. Plaintiff alleges the ulcer came from a latent infection due to the original injury, while defendant points to expert evidence produced by its opponent to the effect that the ulcer was attributable to an entirely independent and very usual cause of such troubles, -- a blister on the heel, brought about by an ill-fitting shoe.
Mudano, as a witness for himself, testified that the fall of the manhole cover "broke" the bone of the heel of his right foot "in five places"; that he was at first attended by Dr. Kinloch; that, after treatment for about a month, this doctor continued massaging the foot for thirteen months, during which time plaintiff suffered considerable pain; that, "in December, 1925, an infection developed where the foot was broken," and that this new trouble was responsible for a series of operations, accompanied by much suffering and inconvenience. The operations were performed by Dr. Moxey, who rendered a bill amounting to $1,500. Plaintiff said that the last time Dr. Kinloch saw him was in December, 1925, and that he then had the sore on his heel; that two months had expired between the time that Dr. Kinloch had discharged him from the massage treatments and the time the sore developed on his heel; that, during these two months, he had no medical treatment; that Dr. Moxey first came in to examine him at the suggestion of his attorney, who was prosecuting the present claim against defendant, and that, when the infection developed, Dr. Moxey was again called upon, and has been the physician in charge of the case ever since. At the trial, plaintiff stated that his wounds were entirely healed, but he was obliged to wear a brace. In describing how the infection started, plaintiff said, "it began first by getting red, and then a dark coloring, then pus formed under it." When these symptoms developed, he again visited Dr. Kinloch, who told him the condition required an operation. Plaintiff then called on Dr. Moxey, who operated and drained out the pus. When asked the question whether, as a matter of fact, a blister had not at first formed on his heel at the spot which subsequently had to be operated on, plaintiff failed to give a responsive answer.
Dr. Kinloch testified that Mudano came under his observation September 30, 1924; that plaintiff was suffering at the time from a fracture of the right os calcis, a part of the bone being crushed; that he gave him proper treatment, and then massaged the injury several times a week until October 19, 1925; that he did not see plaintiff again until the latter part of December, 1925, and at that time the leg showed evidence of acute infection. Mudano's next visit was in February, 1926, when Dr. Kinloch found that his patient "had been operated on"; that "he had several surgical wounds in the back of the leg," and "the heel and ankle were swollen and tender." When asked what caused the condition which the witness observed in December, 1925, he testified that "it came probably from abrasion on [plaintiff's] heel, from the shoe rubbing." Then this question was put: "That is the rubbing of his shoe heel caused a blister which became infected?" and the answer was, "Yes." When asked the question, "During the time that you treated him, during the whole 14 months from September, 1924, to October, 1925, was there any breaking of the skin of the heel of this man's foot?" The witness answered "No." He also said that, during the time in question, there was no evidence of infection or pus or other condition which led him to believe that an infection existed; that the first indication of infection he saw "came from the rubbing of [plaintiff's] shoe." He added, however, that "The persistent tenderness over the seat of fracture would make a man suspicious, possibly, of infection," but that he, as a matter of fact, "was not suspicious of infection," saying further, "I mean, I did not really think of infection over that seat of fracture until he came back with the infection; I never suspected any infection" (meaning, during the whole time the witness had treated plaintiff). Finally, in answer to the question, "Would you say, in your professional opinion, . . . that the infection did come from the accident of 16 months before, or that it did come from the abrasion of his heel due to the rubbing of his shoe?" the witness said, "I think it is more probable that it came from the abrasion."
Dr. Moxey testified that the first examination he made of plaintiff was on May 19, 1925, nine months after the accident. He told of a tender and sore condition which he then found in the heel and which subsequent examinations showed as a continuing trouble. When he saw plaintiff in January, 1926, the infection had "developed." He operated on Mudano, January 9, 1926, and several times thereafter. When asked the question, "Do you say that this infection came from the accident?" the reply was, "No, sir, I do not say that it came from the accident; I say that, in my opinion, it is more probable that it came from the accident than that it came from the outside." And when asked the question, "Would you say that it did not come from an outside infection," the witness replied, "I would not like to say that it did not come from an outside infection." A recess was taken at this point, and, upon the reconvening of the court, the doctor said that, "taking into consideration all the facts of the case," in his opinion the infection came from the accident. This was followed by an extensive cross-examination in which the witness admitted that, at a former trial, he had given some answers which might seem inconsistent with his last stated conclusion, but he endeavored to explain away these answers scientifically, and said, "I have always been of opinion, and the clinical course of the case is confirmation of the fact, that there was in that os calcis at the time of the accident some infection that remained latent until this open manifestation later on."
The above is a fair summary of the salient points in the testimony produced by Mudano, through himself and his two medical experts, to show that the ulcerated condition which developed in his heel, some 16 months after the accident, was due to that occurrence. Plaintiff was obliged to prove by legally sufficient evidence that all injuries for which he claimed damages were attributable to the accident on which he based his claim against defendant. He was entitled to damages for the original fracture of his heel, however, whether the...
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