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CARROLL ET UX. v. PITTSBURGH RAILWAYS COMPANY. (12/24/62)

December 24, 1962

CARROLL ET UX., APPELLANTS
v.
PITTSBURGH RAILWAYS COMPANY.



Appeals, Nos. 255 and 256, April T., 1962, from judgments of Court of Common Pleas of Allegheny County, April T., 1955, No. 3213, in case of John L. Carroll et ux. v. Pittsburgh Railways Company. Judgments affirmed.

COUNSEL

James R. Fitzgerald, with him P. J. McArdle, for appellants.

Con F. McGregor, for appellee.

Before Rhodes, P.j. Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Wright

[ 200 Pa. Super. Page 82]

OPINION BY WRIGHT, J.

In the late afternoon of March 3, 1955, at or near the intersection of West Carson Street with Tabor Street in the City of Pittsburgh, there was a collision between a trolley car of the Pittsburgh Railways Company and a motor vehicle owned and operated by John L. Carroll, in which his wife Helen Carroll was a passenger. The Carrolls instituted a trespass suit, the trial of which resulted in a verdict for John L. Carroll in the amount of $978.00, and a verdict for Helen Carroll in the amount of $22.00. The plaintiffs thereafter filed a motion for a new trial limited to the issue of damages. This motion was refused by the court en banc, and judgments were entered on the verdicts. These appeals followed.

The testimony as to liability was in sharp conflict. Appellants were proceeding down West Carson Street in the direction of McKees Rocks. It was their theory that, as they approached the intersection of Tabor Street, the traffic light was "yellow, turning to red", that a car operated by Victor Mulvihill was stopped in the right-hand lane at the intersection, that their car pulled from the right lane into the center lane and also stopped for the red light, and that the trolley car then struck them from the rear. On the other hand, it was appellee's theory that appellants' car suddenly cut over about twenty feet in front of the trolley car in order to avoid striking the Mulvihill car. Appellee's theory was corroborated to some extent by the property damage, which seemed to indicate that appellants' car was at an angle when the collision occurred.

The damage to appellants' car was stipulated to be $250,00. As to the claim of the husband-appellant for personal injuries, he testified that he did not think he was hurt at the time of the collision, but later developed

[ 200 Pa. Super. Page 83]

    pain in his neck and back. He consulted Dr. Oscar T. Ziel, who was not called as a witness. Dr. William C. Baczkowski testified that he first saw the husband-appellant on November 20, 1956, and had been treating him since, and that "this man must have been severely injured". His diagnosis was muscle spasm and limitation of motion caused by a compression fracture of the fourth lumbar vertebra. He stated that, with increasing age, "this back is going to get more rigid and become stiffer". Dr. Baczkowski testified that his bill for services to date was $150.00, that the charge of the South Side Hospital for x-rays was $55.00, and that future medication and examination "would run between $20.00 and $40.00 a year". The husband-appellant made no claim for lost wages, having continued his employment as a welder without interruption up to the time of the trial. Dr. George H. Pfohl testified for the appellee that he found no areas of muscle spasm or tenderness, that x-rays disclosed no evidence of fracture, and that the husband-appellant had fully recovered from any injuries he may have received in the accident.

The claim of the wife-appellant for damages was summarized in the charge of the trial judge as follows: "Mrs. Carroll's case is quite a small matter as these things go, she having only had a one-day loss of wages and had a $10.00 doctor bill, her loss of wages being $12.00. She mentioned, I think, bout having some pain. I am not even sure whether she stated that she had any pain. I suppose she must have had some reason to go to the doctor. She doesn't make any claim of any magnitude. You must dispose of the case nevertheless".

Appellants first contend that the trial judge "erred in refusing to submit the issue of impairment of earning power to the jury". The answer is that the record is ...


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