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STEINER v. OSTROFF. (03/21/62)

March 21, 1962

STEINER, APPELLANT,
v.
OSTROFF.



Appeal, No. 323, Oct. T., 1961, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1957, No. 2648, in case of Anita Steiner v. Isidor Ostroff. Judgment affirmed.

COUNSEL

Norman Shigon, for appellant.

Leon Rosenfield, with him Alfred Sarowitz, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 197 Pa. Super. Page 462]

OPINION BY MONTGOMERY, J.

On May 28, 1957, appellant-plaintiff was a passenger in a taxicab which was struck by defendant's car from the rear while it was stopped for a red light. No damage was done to the cab or to the car, and upon inquiry of the plaintiff immediately after the accident she replied that she had not been injured. However, in the summer of 1957 she entered this suit for damages, based on her contention that as she sat in the rear seat of the cab with her ankles crossed, her daughter's foot came down on her right ankle as a result of the impact. The daughter (6 or 7 years of age) was sitting next to her in the rear seat of the cab.

[ 197 Pa. Super. Page 463]

In her statement of claim appellant alleged the following injuries, viz., "... serious and severe personal injuries to her head, neck, body, back and upper and lower extremities as well as internally and to her nerves and nervous system. in particular, but not in limitation of any other injuries, the said traumatic incident, plaintiff suffered, by reason of a deep traumatic thrombophlebitis of the right calf and leg. Also, the traumatic incident aggravated, activated and accelerated any pre-existing ailments or conditions which the plaintiff may have had, including varicose veins, particularly of the right leg." Plaintiff-appellant's medical history discloses the following, viz., appendectomy, 1939; oothectomy, 1943; two Caesarean sections, 1949 and 1950; in 1955 she was involved in a head-on automobile collision and injured her right leg, compelling her to have it placed in a cast for two or three weeks; hernia repair, 1956; in February, 1958, she fell while walking upstairs and "broke a vein or something"; again in 1958 she fell on the sidewalk of the Rittenhouse Hotel and injured her left leg.

As a result of the accident under consideration appellant consulted Dr. Davitch the day after it happened and he strapped her ankle and told her that her ankle was sprained. He directed her to bathe it in warm salt water, and over the next two-month period he gave her heat treatments and diathermy. His bill was fifty dollars. He was not produced as a witness at the trial. In August of 1957, at the suggestion of her lawyer, she consulted a Dr. Lisker and saw him three times. Dr. Lisker diagnosed her condition as deep thrombophlebitis of the right calf and varicose veins of the right leg, probably aggravated by recent recurrent thrombophlebitis and a low-grade superficial thrombophlebitis. He recommended surgery and testified that in his opinion the traumatic thrombophlebitis was caused by the accident. His three observations of appellant

[ 197 Pa. Super. Page 464]

    were made August 1, 1957, March 7 of 1958, following her accident of February 28 of that year, and again on November 7, 1960.

On behalf of the defendant a Dr. Lieberman testified that he had examined plaintiff on defendant's behalf on July 12, 1957, and found varicose veins in both legs and that he diagnosed her injury at that time as a sprained ankle. Also, Dr. Turner testified on behalf of the defendant saying that he examined the plaintiff on February 28, 1958, when she fell in the Bonwit Teller store, and ...


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