given so much opportunity to press its objections to the charge, failure to call the point to the attention of the trial court would, of itself, bar raising the issue now. But, in addition, I do not think the contention is correct on the merits. The jury was told originally that if plaintiff did not present the note to her foreman, and the company was not on notice, then 'they cannot be charged with aggravation of a pre-existing condition.' When defendant later conceded, and the Court informed the jury, that notice was given, the issue of aggravation still remained, although defended on another basis; i.e., that plaintiff was given lighter work. In addition, plaintiff's third point for charge was read to the jury, as follows:
'If you find that in February of 1945, the plaintiff gave notice to her superiors that because of the condition of her back she was unable to do any heavy lifting and requested lighter work, and if you further find that her superiors nevertheless directed her to continue in her regular job of lifting and hauling railroad seats and seat backs, and that as a result of the said directions the plaintiff did continue with her regular work, you may find that the defendant company was negligent. If you so find, and if you further find that the plaintiff's condition was either caused by or aggravated by such negligence in whole or in part, your verdict must be for the plaintiff.'
In defendant's third contention, I can find no merit at all. The substance of its argument is that the Court erred in charging the jury on damages as follows:
'Right here might I say, members of the jury that the testimony of Dr. Jepson, the plaintiff's doctor, was to the effect that the injury has completely passed away; to use his words: 'The effect of injury has completely passed away.' So that, at what date did it pass? We have the testimony of the plaintiff herself, we have the medical testimony. You will determine that date.
The plaintiff, she testified, true, that she still has pain in the back. How long has all this continued? And how long has she been deprived of employment as a result of it? That will be your province.'
Defendant argues that mentioning Dr. Jepson in this manner was 'emphasis' on his testimony so that failure to comment in addition on defendant's medical testimony was unfair to defendant. I cannot agree with this contention. It seems clear to me that reference to Dr. Jepson was for the use of his phrase solely, a phrase which squarely stated the issue for the jury, and was the least helpful part of his testimony for the plaintiff. In addition, this remark of Dr. Jepson's was specifically called to the Court's attention by defendant's counsel, so that the emphasis, if there is any, was in answer to his request. Finally, the matter was plainly left for the jury to decide from the testimony of plaintiff and the medical testimony.
Defendant's two remaining contentions do not require extended comment. I feel that plaintiff's position that failure to urge them at trial bars consideration of them now is well taken. But, in addition, I feel they fall on the merits as well. There were two theories to plaintiff's case: one, that she suffered an original injury to her back because she had no assistance in doing heavy work, and, two, that her already bad back was aggravated by defendant's failure to put her on lighter work after being put on notice. Defendant argues that the second theory was not presented to the jury at all. I think the discussion above on defendant's second main contention indicates the contrary. Defendant also argues that the first theory was given to the jury inadequately. The charge directed to the jury to decide whether the accident happened as plaintiff said it did and whether it was the result of defendant's negligence, and if the answer to either question was in the negative, to find for defendant. In addition, plaintiff's second point for charge, which was read to the jury, squarely covered the point.
Accordingly, therefore, I shall deny defendant's motion for a new trial and an order will be entered in accordance with this opinion.
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