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June 4, 1954


Appeal, No. 74, Jan. T., 1954, from order of Court of Common Pleas of Luzerne County, Dec. T., 1948, No. 460, in case of Helen Jerominski v. Fowler, Dick & Walker. Order affirmed.


Thomas C. Moore, for appellant.

William S. McLean, with him James P. Harris, Jr., and James, McLean, Silverblatt & Miner, for appellee.

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

Author: Chidsey

[ 377 Pa. Page 459]


The appellant instituted this action in trespass to recover for injuries which she alleged were sustained by her on January 19, 1948 in the defendant's department store. This is the second time the case has been before us. See Jerominski v. Fowler, Dick & Walker, 372 Pa. 291, 93 A.2d 433. At the first trial the court granted defendant's motion for a compulsory non-suit. The plaintiff appealed from the refusal of the court below to lift the non-suit and we reversed with a procedendo, having decided that defendant's negligence and plaintiff's contributory negligence were questions of fact for the jury. At the second trial of the case the plaintiff recovered a verdict in the sum of $6,000. Upon the defendant's motion the court en banc set aside the verdict and awarded the defendant a new trial. The plaintiff appeals from that order.

The facts show that the plaintiff on the above date went to the defendant's store at about noon and took an elevator to the fourth floor. Not being able to purchase what she desired, she descended the stairway to the third floor. She testified that after she had proceeded down about four steps, her left foot went into something soft, causing her to fall to the bottom, a distance of some eighteen steps. First aid was administered at the store and she was sent home in a taxicab.

[ 377 Pa. Page 460]

A short time thereafter she discovered she was bleeding vaginally. Two years and three months after the accident she underwent two operations which necessitated the removal of her appendix, right ovary and right Fallopian tube. It was primarily for injuries to these organs that plaintiff sought to recover, since the only other injuries alleged were external bruises.

We will not attempt to review at length the testimony of the several witnesses but will advert only to the evidence essential to the determination of the only question before us: Was the court below guilty of a palpable abuse of discretion in awarding a new trial? It is unnecessary to cite the many cases wherein we have held that the action of the court below in granting a new trial will not be reversed except for a palpable abuse of discretion.

The reasons assigned by the court in ordering a new trial were: (1) that the verdict was contrary to the weight of the credible testimony and obviously based upon sympathy for the plaintiff; (2) the court was of the opinion that her alleged condition was neither caused nor contributed to by her fall, and (3) the credible testimony established that plaintiff's fall was not the result of defendant's negligence.

It appears that even though the plaintiff voluntarily consulted eight doctors subsequent to her fall, she only called two of them to establish the relationship between her injuries and the fall. Chiefly, she relied on the testimony of Dr. Nicholas Mauriello, a specialist in physical medicine, who first treated the plaintiff some two years after the accident and was the surgeon who performed the operations. He was the only doctor who would state that in his opinion her condition was due to trauma. The other doctor testifying on the plaintiff's behalf, Dr. Peter Posatko, first saw the plaintiff on February 10, 1948, about a month

[ 377 Pa. Page 461]

    after the accident. She complained at that time of pains in the lower abdominal region and of vaginal discharge. He found the presence of blood in her urine and referred her to Dr. Joseph Kocyan, an eminent gynecologist, who after an examination reported to Dr. Posatko that he was unable to find any pelvic pathology and that the plaintiff's bleeding might have been the result of a ruptured graafian follicle. Dr. Posatko admitted on cross-examination that a graafian follicle is a minute formation on the ovary and a rupture thereof was a normal occurrence during the menstrual cycle.

Dr. Mauriello's testimony in chief was largely discredited because on cross-examination he contradicted himself by subscribing to certain statements in a treatise by a distinguished authority in this field which were directly contrary to what he had ...

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