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JOHN E. FINCKE v. C. H. CHRICHLEY (01/14/55)

THE SUPERIOR COURT OF PENNSYLVANIA


January 14, 1955

JOHN E. FINCKE, JR., BY HIS GUARDIAN, JOHN E. FINCKE AND JOHN E. FINCKE AND JANE B. FINCKE, HIS WIFE,
v.
C. H. CHRICHLEY, APPELLANT

Appeal, No. 57, April T., 1954, from judgment of Court of Common Pleas of Allegheny County, October T., 1950, No. 3173, in case of John E. Fincke, Jr., by his guardian, John E. Fincke, and John E. Fincke et ux. v. C. H. Crichley. Judgment affirmed.

COUNSEL

Harold E. McCamey, with him Joseph P. Fisher and Dickie, McCamey, Chilcote, Reif & Robinson, Pittsburgh, for appellant.

Fredric G.Weir, with him Oliver, Brandon & Shearer, Pittsburgh, for appellees.

Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

[ 177 Pa. Super. Page 61]

PER CURIAM

In a trespass action brought by the parents of a four year old boy for injuries received by him when struck by an automobile driven by the defendant the jury awarded the minor $5000 and the parents in their own right $2500. The parents of the minor proved hospital,

[ 177 Pa. Super. Page 62]

    medical and other specific items of expense totaling $1376.

The sole question presented to us is whether the lower court erred in not reducing the $2500 verdict to $1376. We thing it did not.

The child suffered a fracture of the left thigh, a fracture of the left shoulder bone, a fracture of the

An orthopedic surgeon testified that he united the skull and a concussion of the brain, in addition to some minor injuries.

An orthopedic surgeon testified that he united the fractured bone of the child's leg by using a metal plate affixed to the severed portions of the bone by screws. He stated that he regarded the operation as successful and that the metal plate and screws should remain in place indefinitely and that the child had made a good recovery from a surgical point of view. He also stated, however, that the screws sometimes become loose in a case of this sort, causing irritation and possibly osteomyelitis, in either of which events further surgery is required.

The mother of the child testified that he now walks with a slight limp.

A neurologist testifying with regard to the head injuries, stated that he saw the child for the first time on January 12, 1952, and at that time he made a diagnosis of post traumatic neurosis and post traumatic syndrome, including headaches, lack of attention, inability to retain and difficulty in concentration and recall. He further stated that he saw the child on four other occasions, the last time being April 13, 1954, about a month prior to trial, when he made the same diagnosis, and prescribed glutamic acid, which medication was still being taken by the child at the time of trial. He also testified that he was unable to give any estimate of the duration or future course of the syndrome or neurosis.

[ 177 Pa. Super. Page 63]

Thus at the time of the trial (3 years after the injury) the child was walking with a slight limp, and was suffering from post traumatic neurosis and post traumatic syndrome for which he was still being treated.

The amount of a verdict should be reduced by this court only where it is so grossly excessive that it shocks our sense of justice and indicates a clear abuse of discretion on the part of the court below. Dichiero et al. v. Pittsburgh Railways Company, 313 Pa. 93, 169 A. 82 (1933); Huey et vir v. Blue Ridge Transportation Co., 350 Pa. 488, 39 A.2d 602 (1944); Contillo et vir v. Pittsburgh, 158 Pa. Superior Ct. 524, 45 A.2d 366 (1946); Perzak v. Coulter, 171 Pa. Superior Ct. 475, 90 A.2d 256 (1952).

We find nothing in the record, which was brought before us under rule 41 of this court, to shock our sense of justice at the verdict of $2500. See Bourd et al. v. Berman, 359 Pa. 183, 58 A.2d 442 (1948).

Certainly under the circumstances the two verdicts together are not excessive. See Cook v. Miller Transport Co. Inc., 319 Pa. 85, 179 A. 429 (1935).

Disposition

Judgment affirmed.

19550114

© 1998 VersusLaw Inc.



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