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DAUGHERTY v. ERIE RAILROAD COMPANY (04/17/61)

April 17, 1961

DAUGHERTY
v.
ERIE RAILROAD COMPANY, APPELLANT.



Appeals, Nos. 8 and 9, March T., 1961, from order of Court of Common Pleas of Mercer County, March T., 1959, No. 162, in case of Ellis L. Daugherty v. Erie Railroad Company et al. Order affirmed.

COUNSEL

Fred C. Kiebort, with him T. A. Sampson, Jr., and Sampson and Sampson, and Humes and Kiebort, for defendant railroad, appellant.

George Hardy Rowley, with him Voorhies, Dilley, Keck & Rowley, for individual defendant, appellant.

Cyril T. Garvey, with him Evans and Garvey, for plaintiff, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 403 Pa. Page 335]

OPINION BY MR. JUSTICE MUSMANNO.

Ellis L. Daugherty was a passenger in an automobile being operated by Norma Lee Novak over the Clark Street Crossing in Sharon, which crossing was blocked by a stationary railroad car of the Erie Railroad

[ 403 Pa. Page 336]

Company. The automobile collided with the railroad car and Ellis Daugherty was seriously injured. He brought a suit in trespass against the Erie Railroad Company and Miss Novak.

The jury returned a verdict in his favor against both defendants in the amount of $9,500. The plaintiff moved for a new trial on the ground of inadequacy of the verdict. The motion was granted, the court restricting the new trial to a question of damages alone.

Both defendants appealed contending that the verdict is adequate and that in any event if a new trial is to be had it must be a general one including the question of liability.

One cannot read the record in this case without agreeing with the trial judge who said that the verdict was "so inadequate as to be patently unjust."

When Miss Novak's automobile struck the railroad car the plaintiff was thrown with extreme violence against the dashboard of the automobile. He sustained a dislocated shoulder and suffered injuries to his right leg and ankle and right wrist. His most serious injuries, however, occurred in and about his face and head. The lower court described these injuries in the following language: "The floor of the orbit of the left eye was fractured, his nose was smashed, and both the upper and lower jaws were broken in numerous places. When Dr. Sass, who treated him in the emergency room at the hospital, pulled on the plaintiff's teeth to see if his upper jaw was broken, the entire front portion of his face dropped down. The doctor testified that compound fractures of the nose protruded through the mucous membrane into the nose itself. The X-ray discloses that the plaintiff ...


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