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WALKER v. DAVIS (06/10/59)

June 10, 1959

WALKER
v.
DAVIS, APPELLANT.



Appeal, No. 64, April T., 1959, from judgment of Court of Common Pleas of Allegheny County, April T., 1955 B, No. 3058, in case of Claude E. Walker, Jr. v. Philip Davis. Judgment reduced and, as modified, affirmed.

COUNSEL

Thomas F. Weis, with him Weis & Weis, for appellant.

P. J. McArdle, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 189 Pa. Super. Page 565]

OPINION BY HIRT, J.

The plaintiff stopped his car on Route 51, near Clairton in Allegheny County, intending to make a left turn through an opening in the medial strip of the highway. As he was waiting for approaching traffic to pass, his automobile was struck from the rear by a car driven by defendant Dr. Philip Davis. The force of the impact shoved plaintiff's car into the path of an automobile approaching from the opposite direction. On the trial of the action the defendant admitted liability; the jury found for the plaintiff, as damages for his personal injuries, in the sum of $8,000. This verdict was excessive and the lower court on the defendant's application reduced it to $5,000. The plaintiff, by remittitur filed, acquiesced in the reduction. In this appeal the defendant contends that the verdict is still excessive, and he asks us to reduce it further.

The accident occurred on Saturday November 12, 1954. As to the extent of his injuries the plaintiff testified: "I felt terrible. I was dizzy and my legs hurt me, my back hurt me, and my neck." Immediately after the accident he was taken to the office of Doctor William C. Session in Clairton. An x-ray examination revealed no fracture or dislocation of any bone. Dr. Session found contusions of the back and of the right hip, thigh and leg. The plaintiff complained also of "some dizziness and headache".

Plaintiff made a total of 13 office calls on Dr. Session over the period ending July 16, 1955. By that date all evidence of the injury had disappeared except plaintiff's complaints of periodic headache and dizziness. Plaintiff had returned to his employment with the Deitch Company, a dealer in scrap metal, on Thursday, November 17, which was the fourth day after the accident; he worked 8 hours on that day. And he continued to work steadily for that employer thereafter,

[ 189 Pa. Super. Page 566]

    except when work was not available because of outside weather conditions. He was "a burner". His job entailed heavy labor dismantling and cutting up abandoned locomotives and other machinery, by means of acetylene torches. He drove to and from his work in Sharpsburg, a distance of at least 30 miles from his home in Clairton. In January 1955 he terminated his then employment with the Deitch Company and went to work, again as a burner, for Southwest Steel Company in Clairton. In November 1956 he quit his job with that company and went to work for Wilputte Coke Oven Division, as a laborer. Plaintiff's total medical expense was but $73 and except for three days following the accident he lost no time from his work. Although he testified that he was still disabled when he went back to work, yet his injuries have not resulted in a loss of earning power in any degree. He is entitled to damages only for past and future pain and suffering attributable to the accident.

Dr. Session said that in July 1955 the plaintiff still complained of periodic headaches and dizziness. The doctor examined him again on May 27, 1957, the day of the present trial, and he testified: "This morning he told me he still had these headaches which are around the base of the skull and would bother him more or less when he would bend over." The opinion of the court below correctly states: "There is nothing in the testimony to indicate that the plaintiff received a blow or injury to his head." From the complaints of dizziness and headaches, which were wholly subjective and undemonstrated symptoms, Dr. Session inferred "the possibility" of some brain damage from a "whiplash" injury caused by a sudden ...


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