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KIGGINS v. BUTLER (11/12/56)

November 12, 1956

KIGGINS
v.
BUTLER, APPELLANT.



Appeals, Nos. 93 and 94, March T., 1956, from judgments of Court of Common Pleas of Westmoreland County, May T., 1954, No. 594, in case of Wayne E. Kiggins et ux. v. Charles A. Butler and Martha Espey. Judgments affirmed. Trespass for personal injuries. Before O'CONNELL, J. Verdicts for plaintiff wife in the sum of $23,500. and for plaintiff husband in the sum of $5000. and against both defendants and special finding of concurrent negligence by both defendants; verdicts remitted to $18,000 and $2000, respectively, and judgments entered thereon. Defendants appealed.

COUNSEL

Myron W. Lamproplos, with him Vincent R. Smith, for appellant Espey.

Avra N. Pershing, Jr., with him Henry B. Waltz, Jr., for appellant Butler.

Joseph M. Loughran, for appellees.

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

Author: Musmanno

[ 386 Pa. Page 475]

OPINION BY MR. JUSTICE MUSMANNO

In this trespass action the jury returned a verdict of $23,500 in favor of the wife-plaintiff Eleanor C. Kiggins and $5,000 in favor of the husband-plaintiff Wayne E. Kiggins. The lower Court reduced the verdicts respectively to $18,000 and $2,000. The defendants appealed, averring that the amount awarded to Mrs. Kiggins is still excessive.

We are always reluctant to decrease the amount of a verdict which has already felt the shears in the Court below because, obviously, the Trial Judge, having seen the aggrieved party, is in a better position to apply the tape measure of testimony against the living person than an appellate court, which never sees the injured plaintiff but is limited in its review of the case to a study only of the inanimate printed record. Even so, we are convinced from that record that the amount of $18,000 does not represent an over-generous hand or a liberality indifferent to evidence.

Mrs. Kiggins, who was 32 years of age at the time of the accident, sustained a serious injury to her back which in all probability has left her with a permanent disability.Dr. John M. Best, who treated Mrs. Kiggins, testified: "Q.Tell us about her back for the future, Doctor. What type of back will she have? A. I think her likelihood is she will have a weak back and she may have a recurrence at any time. Q. She will have a weak back for how long, Doctor? A. I don't know, probably forever. Q. Will you explain what you

[ 386 Pa. Page 476]

    mean by a weak back? A. I think she could have episodes of pain and recurrence of her symptoms. Q. How about heavy work or heavy lifting? A. It may aggravate it at any time. Q. How long will that condition exist? A. I think that will be permanent. If she should continue to have trouble, I think she should have it fused. Q. What is a fusion, Doctor? A. It is an operation to stiffen that segment of the spine so it doesn't move."

The defendants assert and allege as error that in his charge, the Trial Judge instructed the jury that the operation mentioned by Dr. Best would immobilize Mrs. Kiggins' back for all time. The Judge's words were as follows: "It is your duty to determine whether she has a permanent injury or not. As I remember Doctor Best's testimony, he said in his opinion it was permanent. If she would have to have a fusion operation later on, it would result in the stiffening of the back and that would be permanent. It would immobilize her back for all time. You take that and compare it with Doctor Perone's and Doctor ...


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