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KEMP v. PHILADELPHIA TRANSPORTATION COMPANY (03/29/76)

decided: March 29, 1976.

KEMP
v.
PHILADELPHIA TRANSPORTATION COMPANY, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1965, No. 11031-A, in case of Irma Kemp v. Philadelphia Transportation Company, n/k/a SEPTA.

COUNSEL

Stuart A. Schwartz, for appellant.

Marvin W. Factor, with him Weinstein & Factor, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Concurring and Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this opinion. Dissenting Opinion by Price, J.

Author: Jacobs

[ 239 Pa. Super. Page 380]

The sole issue involved in this appeal is whether the jury's verdict of $15,000.00 for plaintiff, Irma Kemp, was excessive.

The present action arose after plaintiff was injured as a result of slipping and falling in one of appellant's subway cars. Liability was contested at trial but the jury found appellant negligent and awarded damages to plaintiff in the amount of $15,000.00 even though plaintiff's complaint in trespass only requested damages not in excess of $5,000.00.

At trial plaintiff testified in detail as to the extent of her injuries. She stated that after her fall on the subway train in November, 1963 her knee and back started to give her discomfort. Although plaintiff was able to walk away from the area unassisted, she decided to visit a Dr. Atkins that evening. At that time certain medicine was given to her for the pain and she also received a type of heat treatment for her back. Plaintiff continued to see Dr. Atkins on the average of twice a week for a period of

[ 239 Pa. Super. Page 381]

    six months. According to plaintiff, the pain in her knee disappeared after about six months, but the pain in her back continued although it decreased in degree. Plaintiff testified that at the present time her back hurt her occasionally when the weather was bad, damp, or cold.

Plaintiff was also examined by a Dr. Friedman, a radiologist, who took x-rays of plaintiff's back and knee. Dr. Friedman testified that the x-rays failed to show any fracture or dislocation of the knee or spine and that there was no evidence of spasms in the muscles of the back to support plaintiff's claim of pain in that area. However, Dr. Friedman also admitted that strains and sprains of muscles in the back do not show up on x-rays as well as changes in the bones. Dr. Friedman testified that assuming plaintiff in fact had injured her back, he could not say that the injury would be permanent and could not really say how far into the future the pain would continue. In concluding his testimony, Dr. Friedman added that it was possible for a person to have pain in the back without there being any objective evidence thereof.

The last medical witness to testify was a Dr. DiSilvestro who examined plaintiff on behalf of appellant. He testified that plaintiff suffered a contusion of her lower back and knee from the accident. However, in his opinion there was no sprain or strain in her lower back. Dr. DiSilvestro stated that it was possible that plaintiff experienced pain in her back, but he was unable to objectively locate the cause. According to this witness, the plaintiff had recovered from the contusion of the lower back and he did not expect her to experience any future back pain.

Plaintiff was recalled as a witness and testified that her bill from Dr. Atkins was $345.00 and that her bill from Dr. Friedman was $105.00. According to the plaintiff, she missed a week of work as a lab technician because of her injuries. These lost ...


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