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May 27, 1957


Appeal, No. 136, March T., 1956, from judgment of Court of Common Pleas of Allegheny County, Apr. T., 1953, No. 1431, in case of Robert E. Sherman v. The Manufacturers Light and Heat Company. Judgment affirmed.


Elder W. Marshall, with him Gilbert J. Helwig, Mayer Sniderman and Reed, Smith, Shaw & McClay, for appellant.

Samuel W. Pringle, with him Pringle, Bredin & Martin, for appellee.

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

Author: Bell

[ 389 Pa. Page 62]


Plaintiff was injured on February 12, 1952, in a collision between the automobile he was driving and a truck of the defendant company. The questions of negligence and contributory negligence were vigorously contested. The jury rendered a verdict in favor of plaintiff for $22,000. Plaintiff sought a new trial because of alleged errors in the charge of the Court, and because the verdict was inadequate. A new trial was refused. Plaintiff has appealed from the judgment entered on the verdict.

Plaintiff was a vigorous young man 27 years of age at the time of the accident. For about a month after the accident he was treated by his family physician, Dr. McDivitt, for shock and pain in the lower back and lumbar region. From March 27, 1952 until October 1952, Dr. Steele, an orthopedic surgeon, treated the plaintiff, prescribing heat and massage and the use of a belt. In October 1952, Dr. Steele took a myelogram, i.e., an X-ray of the spinal cord, which disclosed that plaintiff was suffering from a ruptured intervertebral disc. Dr. Steele subsequently recommended surgery. On January 23, 1953, an operation for this condition was performed upon plaintiff at the Veterans' Administration Hospital in Aspinwall. Plaintiff was discharged from the hospital on January 31, 1953. Although he sought no further medical care until January 1955, he testified that he continued to have severe pain in his lower back and right leg after April 1953.

[ 389 Pa. Page 63]

On January 26, 1955, plaintiff saw Dr. Faix, a specialist in general and orthopedic surgery, and Dr. McCabe, a neurologist. A second myelogram was taken and Dr. Faix concluded that either all of the disc had not been removed during the operation in January 1953, or a recurrent disc had formed. Dr. McCabe testified that plaintiff had suffered permanent injury to his nervous system which would cause him severe pain throughout the rest of his life. Plaintiff testified that he worked on and off after the accident and earned approximately $2,000., but he was not able to continue to work at any of the jobs he obtained because of his pain and physical condition.

Defendant not only denied negligence and alleged that plaintiff was guilty of negligence and contributory negligence, but also introduced medical testimony which was almost diametrically opposed to that of the plaintiff's. Defendant called as its medical witness, Dr. Steele, who was plaintiff's orthopedic doctor after the accident. Dr. Steele testified that in his opinion plaintiff's condition was caused by tuberculosis of the spine, and this condition had been arrested and would gradually improve, so that in about 2 or 3 years he could do an ordinary job which required only ordinary physical effort.

Plaintiff contends that the trial judge failed to properly leave to the jury the question of whether plaintiff was totally or partially disabled. We are unable to agree with this contention. It is extremely doubtful whether plaintiff could fairly and reasonably contend under his own evidence - certainly it would be impossible to do so under the defendant's evidence - that his disability was total and permanent in the light of the facts (1) that he had worked on numerous occasions after the accident; (2) had made wages of $2000 after the accident; and (3) that his own doctor testified

[ 389 Pa. Page 64]

    for defendant that he could do ordinary work in two or three years; and (4) that his doctor at the time of the trial testified in his behalf, in reply to a question whether plaintiff could do any strenuous work in the future: "I don't believe that he could do any type of work that would require a great deal of physical activity."

Appellant correctly alleges that the law is as stated in Saganowich v. Hachikian, 348 Pa. 313, 35 A.2d 343 (page 316): "... Damages for loss of earning capacity arise out of an impairment of that capacity, and not out of loss of earnings. The earnings of the plaintiff subsequent to the injury, as compared with his earnings at the time of the injury, are merely evidence, but not conclusive evidence, as to whether his earning power has been diminished by the accident. The matter was clearly for the jury. See Yeager v. Anthracite Brwg. Co., 259 Pa. 123, 102 A. 418; Tingle v. C.-M. Newspapers, Inc., 318 Pa. 537, 179 A. 80."

The trial Judge recognized that this was the law and naturally and properly applied it to the facts of the instant case.

I. Judge's Charge on Disability

Judge KENNEDY, the trial Judge, carefully analyzed and reviewed all the evidence and the contentions of both parties in a lengthy 39 page charge to the jury. In his charge he said, inter alia: "... He is only entitled to compensation for the injuries and the residual effects of the injuries that occurred at the time of this accident on February 12, 1952. I call that to your attention at this time because you can't give all of these directions for the measure of damage in just one or two sentences because again there is a radical variance in the opinion evidence of the medical testimony as to what is causing the disability of Mr. Sherman today and what has been causing it for the last three or

[ 389 Pa. Page 65]

    more years and what the prognosis will be*fn* and what time and which, if any, he will regain his health either fully or in part.


"Then the next item would be partial loss of future earning power. Now I say partial because he has had some earning power during the period up to date, $2000, but it covered a period of three years. So he would have a partial loss of future earning power based on his past record of earning power, his ability to earn. ...

"Now we get back to the partial loss of future earning power. It is claimed here on behalf of the plaintiff that due to his physical condition, his disability, that his earning power is greatly limited in the future and will be for all time to come. That he has a condition here that can't be corrected. The defense does not agree with that. Doctor Steele is just to the contrary on that. However, that again is going to be for you. ...

"Well, now, to get back to the partial loss of future earnings. You will determine what his condition is going to be in the future; whether he is going to have some partial recovery; whether he is going to get better; whether he is going to stay the same as he is or whether he is even going to get worse. Then from that take into consideration his past earnings, his education, his ability, his opportunities in life, how much has his earning power been reduced and how long will it be reduced. Well now, when you determine those things then you will determine how much in dollars and cents his earning power has been reduced and will be reduced in the future from year to year, and how long into the future. ...

[ 389 Pa. Page 66]

"Now then further, the question comes as to the probability of a partial or full recovery or ...

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