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PAVORSKY v. ENGELS (03/19/63)

March 19, 1963

PAVORSKY
v.
ENGELS, APPELLANT.



Appeal, No. 420, Jan. T., 1962, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1958, No. 2281, in case of Lillian Pavorsky and Henry Pavorsky v. Miriam Evelyn Engels. Order affirmed.

COUNSEL

James J. McEldrew, with him Elston C. Cole, for appellant.

Norman Shigon, for appellees.

Before Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 410 Pa. Page 101]

OPINION BY MR. JUSTICE MUSMANNO

Henry Pavorsky and his wife, Lillian Pavorsky, plaintiffs in this case, were occupants of an automobile which was struck in the rear by a car belonging to the defendant, Miriam Evelyn Engels. The Pavorskys brought an action for injuries allegedly sustained by them in this collision. The jury returned a verdict in the following words: "We find for the defendant that the conditions of the plaintiffs were not caused by the accident."

The trial court ordered a new trial for the reason that it had failed properly to instruct the jury on the question of damages. The defendant appealed.

Evidence was presented at the trial to the effect that both plaintiffs had physical disabilities prior to the accident. The defendants contended, therefore, that whatever monetary losses the plaintiffs suffered were not attributable to the automobile accident. The plaintiffs admitted prior ailments but maintained that they had been worsened by the violence which enveloped them in the automobile collision. In their complaint

[ 410 Pa. Page 102]

    the plaintiffs averred that they "did suffer aggravations, activations, and/or accelerations of any pre-existing ailments or conditions which they may have had."

The trial judge said to the jury, with regard to the wife plaintiff: "Did she have this phlebitis, this condition, before and for so long a time that it is called chronic, that it persisted and endured before the accident? You have to remember, and I say it as a matter of law, that a defendant is not responsible except for what he or she did."

The judge excluded the possibility of aggravation of the pre-existing phlebitis, and in effect said that since the defendant was not responsible for the original ailment she could not be responsible for any aggravation of that ...


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