Appeal, No. 324, Oct. T., 1959, from order of Court of Common Pleas of Delaware County, Dec. T., 1956, No. 620, in case of Raymond E. Seidel et ux. v. Robert D. Edelman, individually and trading as Lane Hardware, et al. Order affirmed.
Ernest L. Green, with him Butler, Beatty, Greer & Johnson, for appellant.
Harry J. Gerber, with him Rocap & Rocap, for appellees.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 191 Pa. Super. Page 47]
On January 2, 1955, about eight o'clock p.m., Marian A. Seidel sustained injuries as the result of a fall on the sidewalk along Gunther Avenue in the Borough of Yeadon. She and her husband, Theodore B. Seidel, instituted a trespass action against the borough, and also against Robert D. Edelman, alleged to be the tenant of the premises abutting on the sidewalk. The borough joined Martin Koehler and Anna Koehler, his wife, and also Bernard Azarva, as additional defendants. The Koehlers owned the premises in question and Azarva, not Edelman, was actually the tenant. The action was thereafter discontinued as to Edelman. At the trial a non-suit was entered as to Azarva. The jury returned a verdict in favor of the Seidels in the total sum of $1,500.00 against the borough, and a verdict in favor of the Koehlers so far as liability over to the borough was concerned. The court en banc subsequently granted Seidels' motion for a new trial, and this appeal by the borough followed.*fn1
Mrs. Seidel testified as follows: "My foot went in the hole. My ankle turned over and my weight went down on the right leg... Well, I had two very badly
[ 191 Pa. Super. Page 48]
lacerated knees in addition to the fact that I could not stand on my foot at all". She was immediately treated by a physician who bandaged the ankle and applied medication to the knees. An x-ray taken the next day was negative as to fracture or dislocation. Mrs. Seidel continued to suffer extreme pain, particularly in the calf of the leg. "Of course the leg at this time was too swollen and too sore to put down on the sheet and the heel was propped so that the leg would be up in the air. I couldn't stand it to touch the sheet or I couldn't stand any covers on it". The result was that Mrs. Seidel was confined to her bed for a month, and eventually was required to take a sabbatical leave from her position as a school teacher. She had previously enjoyed good health. Her physician testified that he originally "found a sprained right ankle", but that phlebitis subsequently developed in the calf of the leg. The physician was not asked whether the phlebitis was caused by the accident.
The record discloses that, after the testimony was closed, points for charge were handed to the trial judge by defense counsel, including point 5 set forth in the footnote.*fn2 When counsel for the plaintiffs began his summation to the jury, defense counsel raised the objection that there was no testimony that the phlebitis was caused by the accident. Counsel for the plaintiffs then requested permission to reopen the case. The trial judge refused this request, and directed counsel for plaintiffs "to confine himself only to the sprained
[ 191 Pa. Super. Page 49]
ankle and the claims arising as a result thereof". The record discloses that, after plaintiffs' counsel resumed his summation, there were repeated interruptions by defense counsel. The trial judge at one point stated that "we have just gotten into a situation in this case that has never happened in all my experience both as a lawyer and a judge". In his charge to the jury the trial judge said: "Therefore you may not take into consideration any of the damages, pain or suffering or any other claims for damages, including loss of earnings, as a result of the phlebitis, but must ...