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MARTIN v. PHILADELPHIA SUBURBAN TRANSPORTATION COMPANY (10/09/69)

decided: October 9, 1969.

MARTIN
v.
PHILADELPHIA SUBURBAN TRANSPORTATION COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas of Delaware County, No. 1845 of 1967, in case of Edward J. Martin v. Philadelphia Suburban Transportation Company.

COUNSEL

Robert B. Surrick, with him Cramp & D'Iorio, for appellant.

Charles F. Mayer, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 435 Pa. Page 393]

Appellee, Edward J. Martin, brought suit against the Philadelphia Suburban Transportation Company (Suburban) for damages arising out of injuries suffered when two of Suburban's trolleys collided on April 20, 1966. The jury returned a verdict for Martin in the amount of $12,141.50, which it broke down, although not requested to do so, into $141.50 for specials, $2,000.00 for pain and suffering, and $10,000.00 for impaired earning capacity. Post-trial motions were denied by the court below and judgment entered on the verdict.

Suburban on this appeal raises four points. Suburban complains, first, that the court erred in refusing Suburban's motion to withdraw a juror when, in his rebuttal speech to the jury, plaintiff's counsel referred to Suburban as a big company with lots of money. While such a comment was certainly improper, it would appear from the context not to have been a deliberate attempt to appeal to the sympathy of the jury. Suburban had indicated that Martin was remiss

[ 435 Pa. Page 394]

    in not calling a Dr. Tomasso, who had treated him for a back injury antedating the accident, in order to prove that the herniated vertebral disc had not predated the accident. Appellee's comments on Suburban's size were then to the effect that Suburban could afford to call Dr. Tomasso itself if it wanted. Under these circumstances, it would not appear that counsel's remarks had any malevolent motive. Moreover, the trial court immediately cautioned the jury that the size of the defendant was totally irrelevant to the question at issue, and that Suburban was entitled to the same consideration as any other defendant.

This issue is governed by the general rule discussed in McCune v. Leamer, 383 Pa. 434, 437, 119 A.2d 89 (1956), where we stated: "We have repeatedly held that the matter of withdrawing a juror because of the line of argument pursued by counsel in addressing a jury or at any stage of the proceeding is subject largely to the discretion of the trial court: Richman v. Watkins, 376 Pa. 510, 521, 103 A.2d 688; Bourd et al. v. Berman, 359 Pa. 183, 58 A 2d 442; Libengood et al. v. Pennsylvania Railroad Company, 358 Pa. 7, 11, 55 A.2d 756. Whether a court abuses its discretion in refusing to withdraw a juror because of improper remarks of counsel must be determined by the circumstances under which the statement was made and by the precautions taken by the court and counsel to prevent its having a prejudicial effect: Clark v. Essex Wire Corporation, 361 Pa. 60, 63 A.2d 35; Wilhelm v. Uttenweiler, 271 Pa. 451, 112 A. 94."

In light of this standard, we cannot say that the court below erred in refusing to withdraw a juror.

Suburban next argues that appellee failed to present sufficient evidence to support a claim for loss of earning capacity. Intermingled with this argument is one that the $10,000.00 awarded for this claim ...


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