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DUFFY v. MONONGAHELA CONNECTING RAILROAD COMPANY (06/24/52)

June 24, 1952

DUFFY
v.
THE MONONGAHELA CONNECTING RAILROAD COMPANY, APPELLANT



Appeal, No. 118, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, July T., 1949, No. 1477, in case of Thomas J. Duffy v. The Monongahela Connecting Railroad Company. Judgment, as modified, affirmed.

COUNSEL

J. N. Poffinberger, Jr., with him Kirkpatrick, Pomeroy, Lockhart & Johnson, for appellant.

James P. McArdle, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 371 Pa. Page 362]

OPINION BY MR. JUSTICE BELL

Plaintiff brought an action in trespass for personal injuries under the Federal Employers' Liability Act, Act of April 22, 1908, c. 149; 35 Stat. 65; 45 U.S.C.A. 51, as amended.

Plaintiff, 54 years of age, was employed as a conductor by the defendant, a carrier in interstate commerce. While he was engaged in his work he fell from the ladder of a railroad car to the ground -- a distance of five feet. As a result of the fall he sustained a sprain of his lower back and abrasions and contusions of his right thigh. His thigh was completely healed in ten days. The jury returned a verdict for plaintiff in the amount of $20,000.00, which was reduced by the trial Court to $14,000.00. Defendant, conceding its negligence, appeals solely on the ground that the verdict as reduced by the Court below is still excessive.

[ 371 Pa. Page 363]

The rule applicable to the question here involved is thus stated in Brown v. Paxton, 332 Pa. 260, 264, 2 A.2d 729: "... A judgment will be reversed or modified on appeal because of an exorbitant verdict only where it is so excessive as to shock our sense of justice, and the impropriety of permitting it to stand is so manifest as to show an abuse of discretion on the part of the court below in refusing to set it aside: Scott v. American Exp. Co., 257 Pa. 25; Gail v. Phila., 273 Pa. 275; Goldman v. Mitchell-Flectcher Co., 285 Pa. 116; King v. Equitable Gas Co., 307 Pa. 287."

In order to determine whether this verdict is greatly excessive, it is necessary to examine the nature and the extent of the injuries suffered by the plaintiff, the wages he lost as well as the wages he will likely los by reason of loss of earning power, his reasonably necessary expenses, and his pain and suffering -- provided, of course, that these resulted from his fall: Kmiotek v. Anast, 350 Pa. 593, 39 A.2d 923.

Plaintiff fell from the defendant's car on November 27, 1948. He was taken to the hospital and then returned to his home. He was then X-rayed and thereafter saw the doctors a number of times for observation, advice or treatment. The only treatment which the doctors prescribed was hot applications and massage to his back. As a result of his injury he was absent from work until January 10, 1949, a period of 45 days. He testified that thereafter there were days when he would be unable to work. He had no medical expenses. The parties have stipulated that the earnings lost by the plaintiff as a result of his injuries amounted to $1,000.00. Two of the three doctors testified that there was still tenderness and some slight muscle spasm in the lower back, and that plaintiff had objective evidence of a sprain of this area. The evidence was conflicting as to whether this back condition was permanent, and

[ 371 Pa. Page 364]

    whether it came from arthritis or partly from arthritis and partly from the injury. There was no evidence whether the arthritic condition was present before his injury.

Plaintiff has full range of motion of his arms and legs but complains of pain upon full flexion and extension. With reference to his sprained back, plaintiff's own testimony is illuminating. When he was having his thigh bandaged several days after the accident, he complained to the doctor about his back: "I thought it was bothering me, which it was at the time, and I complained to him about it and he examined it and he says he didn't think there was anything wrong.... He told me to put hot applications on it and rub it." Plaintiff testified that his back still gives him pain at times, especially when bending or lifting, and quite often the thigh gets sort of numb. Plaintiff also testified that he was not able to perform his work as readily as before the accident, and that he can't throw a switch like he used to, or help his wife around the home as he did before his injury. A witness for the defendant testified that plaintiff ...


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