Sherman v. Manufacturers Light & Heat Co.
Decision Date | 27 May 1957 |
Docket Number | 3308 |
Citation | 132 A.2d 255,389 Pa. 61 |
Parties | Robert E. SHERMAN, Appellant, v. The MANUFACTURERS LIGHT AND HEAT COMPANY. |
Court | Pennsylvania Supreme Court |
Argued November 14, 1956
Appeal, No. 136, March T., 1956, from judgment of Court of Common Pleas of Allegheny County, Apr. T., 1953, No. 1431, in case of Robert E. Sherman v. The Manufacturers Light and Heat Company. Judgment affirmed.
Trespass for personal injuries. Before KENNEDY, J.
Verdict for plaintiff in the sum of $22,000; plaintiff's motion for new trial refused and judgment entered on verdict. Plaintiff appealed.
Judgment affirmed.
Elder W. Marshall, with him Gilbert J. Helwig, Mayer Sniderman and Reed, Smith, Shaw & McClay, for appellant.
Samuel W. Pringle, with him Pringle, Bredin & Martin, for appellee.
Before STERN, C.J., JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Plaintiff was injured on February 12, 1952, in a collision between the automobile he was driving and a truck of the defendant company. The questions of negligence and contributory negligence were vigorously contested. The jury rendered a verdict in favor of plaintiff for $22,000. Plaintiff sought a new trial because of alleged errors in the charge of the Court, and because the verdict was inadequate. A new trial was refused. Plaintiff has appealed from the judgment entered on the verdict.
Plaintiff was a vigorous young man 27 years of age at the time of the accident. For about a month after the accident he was treated by his family physician, Dr. McDivitt, for shock and pain in the lower back and lumbar region. From March 27, 1952 until October 1952, Dr. Steele, an orthopedic surgeon, treated the plaintiff, prescribing heat and massage and the use of a belt. In October 1952, Dr. Steele took a myelogram, i.e., an X-ray of the spinal cord, which disclosed that plaintiff was suffering from a ruptured intervertebral disc. Dr. Steele subsequently recommended surgery. On January 23, 1953, an operation for this condition was performed upon plaintiff at the Veterans' Administration Hospital in Aspinwall. Plaintiff was discharged from the hospital on January 31, 1953. Although he sought no further medical care until January 1955, he testified that he continued to have severe pain in his lower back and right leg after April 1953.
On January 26, 1955, plaintiff saw Dr. Faix a specialist in general and orthopedic surgery, and Dr. McCabe, a neurologist. A second myelogram was taken and Dr. Faix concluded that either all of the disc had not been removed during the operation in January 1953, or a recurrent disc had formed. Dr. McCabe testified that plaintiff had suffered permanent injury to his nervous system which would cause him severe pain throughout the rest of his life. Plaintiff testified that he worked on and off after the accident and earned approximately $2,000., but he was not able to continue to work at any of the jobs he obtained because of his pain and physical condition.
Defendant not only denied negligence and alleged that plaintiff was guilty of negligence and contributory negligence, but also introduced medical testimony which was almost diametrically opposed to that of the plaintiff's. Defendant called as its medical witness, Dr. Steele, who was plaintiff's orthopedic doctor after the accident. Dr. Steele testified that in his opinion plaintiff's condition was caused by tuberculosis of the spine, and this condition had been arrested and would gradually improve, so that in about 2 or 3 years he could do an ordinary job which required only ordinary physical effort.
Plaintiff contends that the trial judge failed to properly leave to the jury the question of whether plaintiff was totally or partially disabled. We are unable to agree with this contention. It is extremely doubtful whether plaintiff could fairly and reasonably contend under his own evidence - certainly it would be impossible to do so under the defendant's evidence - that his disability was total and permanent in the light of the facts (1) that he had worked on numerous occasions after the accident; (2) had made wages of $2000 after the accident; and (3) that his own doctor testified for defendant that he could do ordinary work in two or three years; and (4) that his doctor at the time of the trial testified in his behalf, in reply to a question whether plaintiff could do any strenuous work in the future: "I don't believe that he could do any type of work that would require a great deal of physical activity."
Appellant correctly alleges that the law is as stated in Saganowich v. Hachikian, 348 Pa. 313, 35 A.2d 343 (page 316): "... ."
The trial Judge recognized that this was the law and naturally and properly applied it to the facts of the instant case.
Judge KENNEDY, the trial Judge, carefully analyzed and reviewed all the evidence and the contentions of both parties in a lengthy 39 page charge to the jury. In his charge he said, inter alia: "...
...
In dismissing the motion for a new trial the trial Judge aptly said: "... Every contention of the plaintiff as to impairment of earning power past, present and future was submitted fully and fairly to the jury for its determination. ...
Since the defendant contended (by its doctor) that the plaintiff's physical troubles stemmed from tuberculosis of the spine, unconnected with trauma, and that he would be able to resume a normal occupation in two or three years, it thus became a question of fact for the jury whether the plaintiff's disability or some of it was or was not the result of the accident for which the defendant was responsible, and, if so, for what period of time his disablement would continue.
A reading of the Court's entire charge to the jury - as distinguished from the isolated portions which are relied upon by appellant and quoted above - negatives the appellant's...
To continue reading
Request your trial