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SMITH v. L. BLUMBERG'S SON (03/25/57)

March 25, 1957

SMITH, APPELLANT,
v.
L. BLUMBERG'S SON, INC.



Appeal, No. 287, Jan. T., 1956, from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1954, No. 9878, in case of Lee Smith v. L. Blumberg's Son, Inc. Order affirmed.

COUNSEL

William M. Alper, with him Freedman, Landy & Lorry, for appellant.

Ralph S. Croskey, for appellee.

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

Author: Bell

[ 388 Pa. Page 146]

OPINION BY MR. JUSTICE BELL

Plaintiff appeals from an order granting a new trial in a trespass case in which the jury awarded him a verdict of $25,000.

The lower Court in its opinion said:

"The jury's verdict established that plaintiff, a longshoreman forty-two years of age, was crossing Delaware

[ 388 Pa. Page 147]

Avenue from west to east on the morning of December 7, 1953. When Smith reached the island in the center of Delaware Avenue, he looked to his right for north-bound traffic. Seeing none, he started across the street; he was struck by defendant's truck which was south-bound and bucking traffic, that is, the truck was on the east side of the safety island. An issue of fact was raised as to whether or not the south-bound lanes were blocked.

"The evidence was sufficient to support the jury's verdict on the issue of defendant's negligence and plaintiff's contributory negligence.

"We turn to consider the injuries and damages. Plaintiff suffered a broken little finger of the left hand, a broken bone in the right foot. He also complained of back pain, which was subsequently diagnosed as sub-acute lumbrosacral strain. In addition plaintiff was said to be suffering a post-concussion syndrome.

"As a result of the foregoing injuries plaintiff suffered a loss of earnings of about $800 and was given light work such as checking and pointing because he was physically unable to perform the usual arduous duties of a longshoreman. Total medical expenses were $260.00.[Plaintiff's gross income both before and after the accident, as shown by income tax returns, was as follows: 1951, $5,666.93; 1952, $5,478.37; 1953, $5,542.45; 1954, $4,706.52; 1955, $5,696.67.] ...

"The record reveals that the verdict is not only grossly excessive, but it raises, in addition, the serious question as to whether or not the interests of justice require a new trial.

"The testimony introduced to establish the injuries and the diagnoses and prognosis left much to be desired. ...

[ 388 Pa. Page 148]

"The crucial testimony concerns the back injury and a diagnosis of post-concussion syndrome. Dr. Martin A. Blaker testified that he examined plaintiff on three occasions, January 1, 1954, April 29, 1954 and January 6, 1956. Dr. Blaker found some limitation of back motion and prescribed a brace. The limitation of motion was sufficient in Dr. Blaker's opinion to warrant a diagnosis of sub-acute lumbro-sacral strain; he also stated that the pain would continue and interfere with plaintiff's ability to perform his normal duties.

"Dr. Blaker's testimony was seriously weakened; in his direct examination, although he knew plaintiff had been involved in another accident affecting his back, he failed to mention it in making his prognosis. Upon cross-examination, he acknowledged that he had been informed of the second accident, which occurred on February 19, 1954; at that time a 100-pound bag of wheat fell across plaintiff's shoulders and knocked him to the floor of a truck, injuring plaintiff's back. This second injury occurred between the first and second examinations by Dr. Blaker, but Dr. Blaker was not so advised until August, 1954.

"We can only observe that the testimony of Dr. Blaker was less than frank as to the effect of the second injury upon the condition of the plaintiff's back. He was asked the following question: 'Q. You mean to say now you want this jury to believe the entire ill-condition of Lee Smith, whatever it was that was wrong with this man following the second accident, was due to the first accident? A. No sir.'

"Thereafter, on re-direct, Dr. Blaker testified that an injury to the dorsal spine would not affect the lumbrosacral area. He explained the second answer on the ground counsel for defendant did not indicate that the injury was to the dorsal area of the spine, although Dr. Blaker knew which part of the back was affected.

[ 388 Pa. Page 149]

The doctor was obviously fencing with defense counsel and his answers indicate a lack of the candor and frankness to ...


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