introduced to show the temperature in the Brewster Yards or any temperature relatively nearby. The weight of the evidence unquestionably established that the area in question in the Brewster Yards was soft and unfrozen. In any event, the court feels that there was no error in rejecting the report of temperature and precipitation 20 miles away, especially considering that at the airport the 24-hour precipitation was 0.03 of an inch and bearing in mind plaintiff's evidence that it had been raining all week, but having in mind also the uncertainty as to whether it was raining on the day of the accident. If any error was committed, it is felt that it was harmless and that it did not affect the verdict or affect the substantial rights of the parties. See Rule 61, Federal Rules of Civil Procedure.
Plaintiff's Injuries and Damages
Defendant, in its brief, says: 'The findings of the jury that the plaintiff is permanently injured and will be unemployable in the future are based upon a mere guess.' Defendant cites Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104, where the Supreme Court of Pennsylvania held that where plaintiff has the burden of proof on an issue, and his testimony and that of his witnesses in its essential conclusions is inconsistent, the jury verdict can only be based upon a conjecture or guess and the plaintiff has failed to meet his burden of proof.
The medical testimony introduced on plaintiff's behalf has been reviewed in giving consideration to the motion for judgment n.o.v. In examining the evidence on the motion for a new trial, it is my view that the weight of all of the credible evidence and other relevant factors requires that the verdict of the jury on the issue of damages stand. The weight of the evidence supported plaintiff's contention that his physical condition has deteriorated and gradually and progressively has worsened since he was hurt. Plaintiff presented the appearance of a sick man. His physical movements in and about the courtroom indicated some degree of paralysis. He presented the drawn and weak look of a man suffering some major disability.
Defendant's medical evidence tended to dispute the extent of plaintiff's injuries. It is to be recalled that Dr. Bragdon operated on lumbar vertebrae Nos. 4 and 5 and removed the discs. Neither of defendant's medical witnesses, that is Dr. Thomas or Dr. Slasor, would admit that anything was wrong with these two vertebrae. However, Dr. Thomas did say that the X-rays indicated that vertebrae L 1 and L 2 showed evidence of prior fracture. The X-rays from which he testified were taken prior to surgery. It should be, of course, emphasized that Drs. Bragdon and Faix had an opportunity of examining the vertebrae at the time the surgery was performed so that it should be accepted that the fractures, if any, took place on L 4 and L 5. It is significant that no surgery was done on vertebra L 1, which is the one that Dr. McCabe said was blocked as shown by his myelogram and X-ray and was the point at which the compression of the spinal cord is taking place. Plaintiff disclaimed any prior injuries which would cause fractures to L 1 and L 2. Assuming that the vertebrae trouble came from the injury received on the date in question, Dr. McCabe's testimony is not inconsistent and contrary to the other physicians' conclusions, but apparently is based on a progression resulting from what he stated to be the impingement of the spinal cord. The testimony of Dr. McCabe was not contradicted by defendant, but it becomes apparent on examination of this evidence that the jury in accepting Dr. McCabe's conclusions was not guessing or speculating but had substantial evidence on which to base its verdict. As its verdict shows, it accepted the conclusions of the plaintiff's medical witnesses.
Finally, as to the size of the verdict, plaintiff was thirty-five years of age at the time he was hurt. He had a good working record. His earnings in the two years prior to his injury averaged over.$ 4,380 annually. His life expectancy was over thirty-three years. Giving consideration, therefore, to the evidence as to his earning record, the loss of earning power, his pain and suffering and other factors, the verdict seems correct. In summary, it suffices to say that reasonable men could very well differ on the issue as to the extent of plaintiff's injuries, on his loss of earning power, and whether plaintiff is progressively becoming a paralytic or whether he will recover. It was an issue for the jury and the jury's verdict should put an end to this issue.
Both motions will be refused.
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