upon the extent of the injuries suffered by the plaintiff.
After the accident occurred, the plaintiff testified that everything went black and that the next thing he remembered was that he was at the Moses Taylor Hospital. The records of the hospital show that plaintiff suffered three lacerations of the scalp, which were cleaned and sutured. X-rays revealed no fracture of the skull, and plaintiff was discharged from the hospital in a week. He continued to call at the dispensary weekly for several months. Dr. MacLean, the chief surgeon at the hospital, and who was employed directly or indirectly by the defendant railroad, ordered plaintiff back to work on January 18, 1951, which was almost three months after the accident, but plaintiff refused to return to work. He testified that he had frequent dizzy spells, severe headaches and soreness, all of which was aggravated when he stopped or bent down. Plaintiff also complained of sleepless nights and loss of appetite. He said he refused to return to work because he was unable to do any work. He attempted to do work about the house, but found his condition became worse and therefore ceased his efforts.
Plaintiff has three scars on his forehead, the largest of which appears on the left side of his forehead and is from six to eight inches in length. Plaintiff has continued to secure medical treatment from Dr. Killeen about twice a week to help relieve him of the pain in his head.
The medical testimony offered in the case conflicted sharply as to the presence of brain injury. Dr. Garvey examined the plaintiff a few days prior to trial an his diagnosis was that plaintiff suffered a concussion of the brain and had either some small hemorrhages or a laceration of the brain, and further stated that to have symptoms continue as they are, plaintiff must have some scar tissue in his brain. Dr. Killeen, who treated plaintiff since February 9, 1951, diagnosed plaintiff's condition as a severe degree of concussion of the brain and that plaintiff's condition is progressively getting worse. It was his opinion that plaintiff, at the time of the trial, was unfit to follow any gainful occupation, and if plaintiff's condition continues as it has in the past six months, that he will never be able to work again.
The doctors called by the defendant expressed entirely different opinions. Dr. Corcoran took X-rays of the plaintiff and found no fracture of the skull, and expressed the opinion that there was no damage to the brain. Dr. MacLean and Dr. O'Malley said that inasmuch as the X-rays were negative as to any damage to the skull, there could have been no brain injury unless the plaintiff was unconscious after the accident or showed other symptoms indicative of injury injury to the brain. They contended plaintiff was not unconscious after the accident as he walked with the assistance of two of his fellow employees from the scene of the accident and gave one of the employees the keys to his locker. Plaintiff contended that everything went black after the accident and the next thing he remembered was that he was at the hospital.
The Court, being aware of this sharp conflict in the medical testimony, stated to the jury: 'There are important facts in this case that are very much in dispute, not only as to the accident itself but as to the extent of the injuries to the plaintiff. How are you going to determine the truth here? That is your duty and that is what you must do here. The credibility of a witness is for you- all for you, and it is for you to say whether you believe a witness or you do not. You are the judges of the credibility of the witnesses and the weight that should be given their testimony. With that the Court has nothing to do. You may judge the credibility of a witness by the manner in which he gives his testimony, his demeanor upon the stand, the reasonableness or the unreasonableness of his testimony, his means of knowledge as to any fact about which he testifies, and his interest in the case, or any circumstances tending to shed light upon the truth or falsity of such testimony and it is for you at last to say what weight you will give to the testimony of any and all witnesses'.
The Court feels that its charge on the credibility of witnesses applied to the expert as well as the lay witnesses, and was proper and adequate. It was then the jury's function to credit or discredit all or part of the testimony. Moore v. Chesapeake & Ohio Railway Co., 1951, 340 U.S. 573, 576, 71 S. Ct. 428, 95 L. Ed. 547.
In view of the serious injury to plaintiff's head, the jury would be justified in awarding plaintiff a substantial sum of money to fairly compensate him for past and future pain, suffering and inconvenience, and the amount to be awarded is peculiarly within the discretion of the jury, provided it is within reason. The sum of money a jury awards for pain and suffering also need not be reduced to its present worth. Yost v. West Penn Rys. Co., 1939, 336 Pa. 407, 9 A.2d 368. As was stated by Judge Goodrich in Scott v. Baltimore & O.R. Co., 3 Cir., 1945, 151 F.2d 61, at page 64, 'Insofar as the award of damages to him consists of compensation for pain and suffering it is, obviously, nothing that an appellate court can, or a trial court for that matter, measure by a yardstick as to whether the jury has given too much or too little.'
The final element of damages which the jury had to consider was plaintiff's loss of future earnings. There was evidence from which the jury might have found that this man would not be able to follow a gainful occupation. Prior to the accident, plaintiff was in good health and earning approximately $ 3,900 a year. At the time of the trial he was 55 years of age and a man of that age has a life expectancy of 17.40 years according to the mortality tables in evidence. Even if we were to assume that the jury awarded plaintiff nothing for pain and suffering, which is highly improbable, and awarded plaintiff all of the $ 17,000 for loss of future earnings, in the light of the evidence, it would be so excessive as to shock the conscience. Assuming the plaintiff would have worked only until the age of 65, the usual retirement age for men in manual occupations, if he were to continue to receive his present annual wage, he would lose approximately $ 39,000 in future wages, which reduced to its present worth would still exceed $ 17,000.
Furthermore, the Court has no way of knowing how much of this $ 17,000 was awarded to the plaintiff for his pain and suffering.
There is no precise rule for translating injury into money. The most a court can do is to properly instruct the jury as to the elements of damage a plaintiff may recover for in a personal injury action, and, on a motion for a new trial, to examine the whole case on the law and the evidence with a view to securing a result which is legal and just. William B. Smith v. The Times Publishing Company, 1896, 178 Pa. 481, 501, 36 A. 296, 35 L.R.A. 819. This Court, as a trier of fact, if it had found for the plaintiff, might have awarded a smaller sum than the jury did, but a court should not substitute its judgment for that of the jury. A court should not set aside the jury's verdict on the ground that it is excessive unless it is so high as to shock the conscience, or unless it is evident that the jury was biased or acted capriciously or unreasonably. Foreman v. Pepin, D.C.E.D. Pa. 1946, 71 F.Supp. 772, affirmed 3 Cir., 161 F.2d 872. This Court cannot say that the jury's verdict shocks the conscience of the Court, nor does it reflect bias, nor does it indicate that the jury acted in a capricious or unreasonable manner.
It is idle to compare the size of this verdict with others returned in this Court, in other federal courts, or in the state courts, be they higher or lower, for each case is different on its facts. It is also irrelevant as to what a workman would receive under the Pennsylvania Workmen's Compensation Act 77 P.S. 1 et seq., for similar injuries, because the Workmen's Compensation Act has set up a schedule of moderate compensation for employees injured during their course of work irrespective of negligence. In return for the same, the employer has given up defenses available to him in a common law action; whereas, the employee has surrendered the right of action theretofore possessed by him. Gallivan v. Wark Co., 1927, 288 Pa. 443, 448, 136 A.223. Juries as well as the courts are readily aware of the fact that our cost of living has increased sharply during the last 10 or 15 years,
and that our dollar has diminished in value greatly, and the notable increase in the size of jury verdicts in recent years may, to a large extent, be attributed to the same.
V. The verdict is excessive in the light of the plaintiff's flagrant contributory negligence.
The question of plaintiff's contributory negligence was one for the jury to decide, and the Court explained the question to the jury fully and clearly, stating: '* * * So if you find that the defendant was negligent from the evidence, and also find that the plaintiff himself was negligent, that does not bar any recovery, but you must find a verdict for the plaintiff in this case. However, there is also another provision in the law, and that is that if you find that plaintiff was contributory negligent, it will be your duty to decrease the amount of the verdict, that is, the verdict is diminished or reduced by the amount of the negligence attributable to the plaintiff. In that case you will reduce the amount of the verdict in favor of the plaintiff by such a proportion as you would determine his won negligence to have contributed to the happening of the accident'.
Later in the charge the Court again stated: '* * * but if you find that the plaintiff was contributorily negligent you would then merely reduce the amount of the verdict by such an amount as you think represents the proportionate share resulting from the plaintiff's own negligence'.
There was no objection by the defendant to the Court's charge on contributory negligence, nor any requested modification or amplification of the same. The Court must assume that the jury considered the problem of contributory negligence with all the other aspects of the case. Jones v. Pennsylvania R. Co., D.C.E.D. Pa., 1947, 75 F.Supp. 855, affirmed 3 Cir., 166 F.2d 299.
VI. The jury was misled by the newspaper publicity.
There were newspaper articles published during the course of the trial which stated that plaintiff was seeking $ 75,000 in damages, but the defendant did not call the Court's attention to the same. It is the practice of the newspapers in this city, as well as in most other cities, to quote the amount which plaintiff is seeking to recover in personal injury actions, especially where the amount is large, and if the defendant felt that the jury would be misled by these articles, defendant should have specifically requested the Court to caution the jury about these articles. By failing to object immediately defendant waived his right to object at all. Commonwealth v. Clay, 1914, 56 Pa.Super. 427.
In support of its statement that the jury were misled by the newspaper publicity, counsel for defendant state that they are informed that the jury did not discuss the question of negligence, but merely argued as to how much the plaintiff should receive out of the $ 75,000 he claimed. One juror suggested one-half of that amount; ultimately they agreed upon $ 21,500. It is well established that the verdict of a jury cannot be impeached by the testimony or affidavits of the jurors. McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed. 1300. In Friedman v. Ralph Bros. Inc., 1934, 314 Pa. 247, at page 249, 171 A. 900, at page 901, the Supreme Court of Pennsylvania said: 'What is more important, we cannot accept the statement of jurors as to what transpired in the jury room as to the propriety or impropriety of a jury's conduct. * * * To do so would destroy the security of all verdicts and go far toward weakening the efficacy of trial by jury, so well grounded in our system of jurisprudence. Jurors cannot impeach their own verdict. Their deliberations are secret and their inviolability must be closely guarded.'
Defendant's motion for new trial must be denied.