Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1961, No. 301, in case of Jacob Rosen v. William L. Slough, Jr.
Henry J. Lotto, for appellant.
Alan Schwartz, with him Manchel, Lundy & Lessin, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Jacobs, J.
[ 212 Pa. Super. Page 399]
In this negligence action involving a right-angled intersection collision the plaintiff secured a jury verdict in the amount of $500.00. On plaintiff's motion the court below granted a new trial limited to damages and the defendant appealed.
Two questions present themselves for our consideration: Did the court below abuse its discretion in
[ 212 Pa. Super. Page 400]
granting a new trial because the verdict was inadequate? If it did not, was this a proper case to limit such a new trial to a consideration of damages only?
The collision occurred on January 25, 1961 at the intersection of Thirty-Third Street and Lancaster Avenue in Philadelphia at 9:30 a.m. on a clear dry day. The sixty-eight year old plaintiff was going north on Thirty-Third Street and the defendant was driving east on Lancaster Avenue. The intersection was controlled by a traffic light and each party claims that he had the green light. Plaintiff's automobile was hit on the left side toward the rear and it was agreed that the damages to the automobile were $117.00. At the time of trial the plaintiff was senile and his testimony was presented through a discovery deposition that had been taken on August 13, 1962 by the defendant. According to plaintiff's deposition, he had no visible personal injuries, but immediately after his car came to rest he felt pain in his back and groin. Plaintiff consulted a physician. The physician testified at trial and stated that on the initial examination plaintiff showed indications of having a left inguinal hernia. He sent the plaintiff to a surgeon on January 30, 1961. The surgeon operated on the plaintiff for a hernia for which plaintiff was hospitalized. In the opinion of both the physician and the surgeon the hernia was caused by the injuries received in the collision. The physician also treated plaintiff for a back sprain, in twelve office visits, for which he charged $65.00. The hospital bill was $361.00 and the surgeon's bill was $250.00. The plaintiff was away from his work for thirteen weeks and his average earnings per week were $87.50.
Defendant called a physician who had examined the plaintiff on June 19, 1961. He testified that in his opinion the hernia was not caused by the accident. The deposition of a passenger in the defendant's automobile
[ 212 Pa. Super. Page 401]
was introduced. In the deposition he stated that he was unable to recall the details of the accident or who had the green light. Apparently this witness had made a statement in 1961 which was shown to him at the conclusion of his deposition. He said that this did not refresh his recollection with regard to the light. He then read this statement into the deposition but upon objection by plaintiff's counsel at the trial the court would not permit that part of the deposition to be read to the jury. The defendant contends that the lower court erred in refusing to allow this statement to be read into the evidence and in permitting the deposition of the plaintiff to be used at the trial because it was not shown that the ...