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NISSLEY v. PENNSYLVANIA RAILROAD COMPANY (09/09/69)

decided: September 9, 1969.

NISSLEY
v.
PENNSYLVANIA RAILROAD COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1960, No. 3795, in case of Roberta E. Nissley, administratrix of estate of Kenneth N. Nissley, deceased, v. The Pennsylvania Railroad Company.

COUNSEL

George J. Miller, with him Harvey Bartle, III, and Dechert, Price & Rhoads, for appellant.

Arthur G. Raynes, with him Charles A. Lord, and Richter, Lord, Toll, Cavanaugh, McCarty & Raynes, for appellee.

Bell, C.j., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice O'Brien and Mr. Justice Roberts join in this dissenting opinion.

Author: Jones

[ 435 Pa. Page 505]

On November 1, 1960, Kenneth N. Nissley, who was employed as a trainman by the Pennsylvania Railroad at its yards in Enola, Pennsylvania, wrenched his back while chasing a runaway box car. On May 24, 1961, Nissley died of aleukemic leukemia. The present action,*fn1 which was instituted against the Railroad by Nissley's widow as administratrix of his estate, is based on the theory that Nissley's back injury triggered the condition which resulted in his death. At trial the jury returned a verdict in favor of the plaintiff in the sum of $120,460. After the court below refused a motion for a new trial, the Railroad appealed from the judgment entered on the verdict.

The Railroad advances two reasons as to why the judgment should be set aside and a new trial ordered. First, the Railroad argues that the trial court committed reversible error in allowing an expert medical witness, whose identity was not revealed in answer to a timely interrogatory seeking the names of all medical

[ 435 Pa. Page 506]

    authorities whom the plaintiff had consulted, to testify for the plaintiff. Second, the Railroad maintains that the verdict was against the weight of the evidence. We need not consider this second issue, for we hold that the Railroad's first assertion is sufficient to justify the grant of a new trial.

Before trial, counsel for the respective parties entered into a medical exchange agreement under which the Railroad gave to the plaintiff the report of a pathologist it had engaged and the plaintiff delivered to the Railroad reports received from Nissley's two attending physicians. On October 1, 1965, the Railroad served upon plaintiff the following interrogatory: "State the name and address of each physician whom plaintiff or anyone acting on her behalf has consulted as to whether or not there is a causal connection between the accident referred to in the complaint and the decedent's death." (Emphasis added)

At a pre-trial conference held six weeks later, plaintiff's counsel agreed to answer this interrogatory before December 6. This he failed to do, and on December 21 he asked for more time to answer the interrogatory since he was still searching for an expert to testify about the causal connection between the accident and the decedent's death. Finally, on February 2, 1966 -- five days before the jury was sworn -- plaintiff's counsel filed the following answer to the Railroad's interrogatory: "No answer required under P. R. C. P. 4011(d)."*fn2 The Railroad responded by filing pre-trial motions to compel an answer to the interrogatory or,

[ 435 Pa. Page 507]

    in the alternative, for a continuance of the case until an answer was filed. These motions were denied by the calendar judge and the case proceeded to trial. On the third day of trial, the plaintiff called Dr. John M. Mead as an expert witness. The Railroad moved that Dr. Mead be precluded from testifying because his identity had not been disclosed in answer to the interrogatory. This objection was overruled, and Dr. Mead was permitted to ...


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