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LINK ET UX. v. HIGHWAY EXPRESS LINES (10/12/71)

decided: October 12, 1971.

LINK ET UX., APPELLANTS,
v.
HIGHWAY EXPRESS LINES, INC.



Appeals from judgment of Court of Common Pleas of Delaware County, No. 8830 of 1967, in case of Frank Link and Frances Link, his wife v. Highway Express Lines, Inc. and Joseph A. Fahy and Frank Link et al.

COUNSEL

Arnold M. Snyder, with him Snyder and Snyder, for appellants.

Stephen J. McEwen, Jr., with him Joseph P. Mylotte, and McEwen, McEwen and Mylotte, for appellee.

Bell, C. J., Jones, Eagen, O'Brien, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri. Mr. Justice Eagen dissents. Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Barbieri

[ 444 Pa. Page 449]

Appellants, Frank Link and his wife Frances Link, brought a trespass action in the Court of Common Pleas of Delaware County against appellees, Highway Express Lines, Inc. (Express) and Joseph A. Fahy. Express and Fahy joined Frank Link as an additional defendant. At the conclusion of the trial, the jury rendered a verdict in the amount of $18,000.00 in favor of Frances Link against the original and additional defendants. The jury also returned a verdict against Frank Link as plaintiff and in favor of the two original defendants, Express and Fahy. Frank and Frances Link, in their capacity as plaintiffs, filed motions for a new trial which were denied. Neither Express, Fahy, nor Frank Link as additional defendant filed any post-trial motions. From the judgment entered following a denial of post-trial motions, Frank and Frances Link have taken this appeal.

[ 444 Pa. Page 450]

The facts of the case are not in dispute on this appeal. On May 13, 1966, at an intersection in the City of Chester, an automobile owned and operated by Frank Link collided with a tractor-trailer owned by Express and operated by Fahy. Mrs. Link was a passenger in the car with her husband. The collision occurred as Fahy executed a left-hand turn into the path of the Links' automobile. As a result of the accident, Frances Link sustained personal injuries.

Appellants raise five contentions on appeal: (1) The verdict was inadequate; (2) the trial judge erred in refusing to charge that failure to see that which is obvious is negligence per se; (3) the trial judge erred in answering a question to him from the jury during its deliberations; (4) the trial judge erred in his refusing to instruct the jury on Frank Link's loss of consortium as an element of the damages collectable by him; (5) the trial judge erred in refusing to include in the charge an instruction that Frances Link was entitled to compensation for her inability to perform household duties. We find these alleged errors to be devoid of merit and therefore affirm.

(1) Appellants contend that the amount awarded by the jury to Mrs. Link was legally inadequate because of the evidence indicating that she had by the date of trial lost $5,122.32 in wages, largely due to her hospitalization, and suffered diminished earning power of $41,932.70 because her injuries made it impossible for her to continue in her job as a sewing machine operator. Our review of the record, however, indicates that appellants' case on the issue of diminished earning capacity was something less than ironclad. As a result of the accident, Mrs. Link suffered a dislocated hip, fracture of the pelvis, fracture of the left wrist, and abrasions about her face. Although Mrs. Link's physician testified that her injuries prevented her from continuing

[ 444 Pa. Page 451]

    in her job as a sewing machine operator, he also testified that Mrs. Link could be employed in a job "tailored to her capabilities." This testimony conflicts with the asserted loss of $41,932.70, which was computed by multiplying her wage as a sewing machine operator by the time remaining between her allegedly involuntary retirement and mandatory retirement at age 65. Furthermore, the jury could have found that Mrs. Link's assertedly involuntary retirement two years after the accident to be at odds with her working on the job for much of this two year period.

The determination of damages is a matter within the sound discretion of the finder of fact -- in this case the jury. We do not think that it was a gross abuse of discretion for the lower court to refuse appellants' motions for a new trial on the grounds of the inadequacy of the verdict. See Wilson v. Nelson, 437 Pa. 254, 256, 258 A.2d 657 (1969), and cases cited therein. We are not persuaded that the ...


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