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YOWORSKY v. CHARLES STORES COMPANY (07/17/61)

July 17, 1961

YOWORSKY, APPELLANT,
v.
CHARLES STORES COMPANY, INC.



Appeals, Nos. 214 and 215, Jan. T., 1961, from order of Court of Common Pleas of Luzerne County, May T., 1958, No. 158, in case of Barbara Yoworsky et al. v. Charles Stores Company, Inc. Order affirmed.

COUNSEL

Anthony C. Falvello, with him Joseph J. Ustynoski and Rocco C. Falvello, for appellants.

J. Thirwall Griffith, for appellee.

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

Author: Eagen

[ 404 Pa. Page 644]

OPINION BY MR. JUSTICE EAGEN.

These appeals are from an order of the court below granting a new trial in an action of trespass for injuries suffered by the wife-plaintiff through the alleged negligence of the defendant.

The wife-plaintiff, while shopping in the defendant's store, was descending a stairway leading from the second to the first floor. The sole of her right shoe caught in the metal strip at the outer edge of one of the steps causing her to fall approximately seven steps to another landing. She sustained injury to the shinbone, the knee, the ankle, the instep and the buttock of her right leg. The jury awarded the wife-plaintiff $7500 and her husband $2500. The evidence disclosed special damages totaling $172.60, including $87 in doctor bills, $45 for x-rays, $25 for eyeglasses and $15.60 for a damaged slip and stockings.

The lower court granted a new trial ruling, inter alia, that the verdict was excessive and that the evidence failed of proper proof to substantiate the major item of the claim.

The wife-plaintiff's demand for damages was based in a substantial manner upon an alleged aggravation of a pre-existing arthritic condition. Her own testimony and that of the members of her family manifested that in the areas of the body injured in the fall, her condition following the accident rapidly and progressively worsened resulting in great pain and substantial disability.

The fall in issue occurred on December 26, 1956. The wife-plaintiff was then approximately sixty years of age. Her personal physician, Dr. Coll, called as a

[ 404 Pa. Page 645]

    witness by the plaintiffs, testified that on March 9, 1953, he began treating her for "mixed rheumatoid and osteoarthritis involving mostly the knees and ankles." At that time, there were no objective findings and the symptoms were purely subjective. In October 1956, she evidenced an involvement in the lower back and a "paravertebral block" was indicated. Tenderness was also present on the left part of the spine in the proximity of the third lumbar vertebrae. At that time ...


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