The following statements of the appellate courts seem appropriate:
'Finally, the appellant presses the argument that the charge as a whole is slanted in favor of the plaintiff. This is a matter of judgment. We could hardly expect one who has lost a lawsuit to look at it from the same point of view as the victor.' Robak v. Pennsylvania R. Co., 3 Cir., 1949, 178 F.2d 485, 487.
'Appellant complains that the court below unduly stressed appellee's testimony. The charge was a correct resume of all the evidence, and we may consider only the record before us. Appellant's misfortune is that the evidence exhibited a much stronger case for defendant than for plaintiff, and, if it created an impression in defendant's favor, it was because the testimony warranted it.' Gallagher v. Hildebrand, 1926, 285 Pa. 350, 352, 132 A. 174.
A reading of the last three pages of the charge, together with the charge as a whole, indicates to the trial judge that the jury was impartially advised of the issues for their decision. Because of the failure of counsel for plaintiff to submit requests for charge within the time required by the Rules and his failure to furnish any written trial brief, it is not reasonable to object that the trial judge was not more expert in presenting plaintiff's contentions to the jury. The court can find no error in those parts of the defendant's requests for charge which were read to the jury.
Exhibit A to Opinion of March 16, 1956.
I. Contention that charge erroneously stated that plaintiff did not put weight on her foot and was unreasonable in not doing so (Paragraphs 29, 33 & 34 of Motion for New Trial).
The record makes clear that from time to time during the time since plaintiff's fall on November 27, 1950, she used casts, braces, crutches, and restrictive bandages, thereby taking weight off her foot. At certain times her failure to place weight on her foot was recommended by doctors, but at other times this was contrary to the advice of certain doctors (see testimony referred to at page 142 of 140 F.Supp. Plaintiff did not testify that she followed the doctors' advice in putting more and more weight on her foot, but that she tried it and could not do it because 'it was hurting.'
The charge did not say at any point that plaintiff did not have good cause to refuse to put weight on her foot or that she was unreasonable in not putting weight on her foot. This decision was left to the jury under language based on the Restatement of Torts, § 918(1) and Comment (e).
Cf. Murphy v. American Barge Line Co., 3 Cir., 1948, 169 F.2d 61, 64; Lewis v. Pennsylvania R. Co., D.C.E.D.Pa.1951, 100 F.Supp. 291, 294; Feather-smith v. United States, D.C.E.D.Pa.1952, 104 F.Supp. 226, 229-230. Also, the charge did not state that a person has a duty to suffer pain.
II. Contention that it was erroneous to say that Dr. Wolcott agreed with the other doctors in believing there was no need for an open reduction operation (Paragraph 30 of Motion for New Trial).
A reading of Exhibit P-11
and consideration of the testimony on this point indicates to the trial judge that, after considering new X-rays, as well as X-rays taken at Jefferson Hospital, Dr. Wolcott did not want to perform an open reduction operation as of 8/21/51, even though he believed the bone was not entirely healed. See N.T. 313-314.
Even if the trial judge was incorrect, the charge emphasized that the trial judge's memory on this point might be different from that of the jury and that the jury might remember some evidence that the judge had overlooked.
There is no evidence in the record that plaintiff was unable to produce Dr. Wolcott as a witness, so that any confusion in the record on this point, which was introduced into the case by plaintiff, is her responsibility. Under such circumstances the charge does not contain reversible error in this respect.
III. Contention that it was error to draw an inference from the fact that plaintiff failed to call Dr. Wolcott and Dr. Lockman (Paragraph 31 of Motion for New Trial).
On the issue of damages, one of defendant's main contentions was that plaintiff has been physically able to return to work on July 31, 1951. One of plaintiff's contentions was that Dr. Wolcott, of the Women's Medical College Hospital, had believed it was advisable to perform an open reduction operation on plaintiff in August 1951 and, hence, plaintiff could not have been fit for the strenuous work of a track laborer on July 31, 1951. As pointed out above under part II of this Exhibit A, the plaintiff produced the testimony concerning Dr. Wolcott's views on such an operation from the defendant's medical records, but the testimony and Exhibit on this point do not make crystal clear what Dr. Wolcott's ultimate view concerning this operation was. Under these circumstances, Dr. Wolcott was very familiar with a relevant fact, that is the physical condition of plaintiff's left leg and ankle in the summer of 1951, and there was no showing that he was unavailable as a witness.
Another contention of defendant was that plaintiff's present condition resulted from disuse of her muscles caused by using tight bandages, crutches, a brace, etc., keeping her ankle from getting exercise. During the trial, plaintiff's counsel also brought out by having a witness testify from the medical records of the Philadelphia General Hospital that Dr. Lockman of that hospital had treated plaintiff in 1952 and recommended that she wear a brace. Hence, Dr. Lockman was familiar with plaintiff's physical condition in 1952 and there was no showing that he was unavailable as a witness.
The applicable rule of law in such cases is that where witnesses familiar with the facts are available and not produced on the stand, the jury is entitled to infer that their testimony would be unfavorable to the cause of the party whose interest it is to establish the facts with which the witnesses are familiar. See United States v. Grannis, 4 Cir., 1949, 172 F.2d 507, certiorari denied 1949, 337 U.S. 918, 69 S. Ct. 1160, 93 L. Ed. 1727; Wigmore on Evidence (3rd Ed.), § 285.
In view of the above facts, this language of the charge is no more favorable to the defendant than the trial judge was required to give under the above-mentioned rule of law (N.T. 498-499):
'In this connection, you are entitled to take into consideration plaintiff's failure to produce as a witness Dr. Wolcott, to whom she referred so often during this case, and Dr. Wolcott was never here in court. Dr. Lockman was never here in court, and those were the doctors who treated this plaintiff during this early period when the Reading Company says that they gave her a return-to-work slip, that she was perfectly able to return to work, and their doctors say there was a complete union, and they say that she kept using Ace bandages and other supports which did not put the proper weight on the ankle in order to permit its recovery.'
In view of the references to these doctors in the arguments of counsel (N.T. 442-444, 466-467, & 472-473), an instruction on this subject was necessary and proper.
IV. Contention that it was error to point out that Dr. Bonner never saw records of Women's Medical College Hospital (Paragraph 32 of Motion for New Trial).
Plaintiff's counsel called Dr. Bonner, who testified that he examined her on November 9, 1955, when he made the diagnosis described at page 142 of 140 F.Supp. Also, Dr. Bonner testified that plaintiff was using a crutch and cane, during the period since her fall on 11/27/50, under doctor's orders, even though he had only seen the records of the Philadelphia General Hospital and the Temple University Hospital beginning in January 1952 and had not seen the records of the Women's Medical College Hospital (N.T. 186), where plaintiff was treated until the end of 1951 (N.T. 172 and 174-176). Furthermore, it was as of July 31, 1951, that defendant's doctors believed plaintiff had made a sufficient recovery to resume her job as a track laborer. Under these circumstances, the trial judge felt it was his duty to point out in the charge that Dr. Bonner saw none of the 1951 records when plaintiff was treated at the Women's Medical College Hospital (N.T. 499).