No. 211 March Term 1978 Appeal from Order of the Court of Common Pleas of York County, at No. 538 January Term 1974, Civil Action - Law, in Trespass.
Lewis H. Markowitz, York, for appellant.
George F. Douglas, Carlisle, for appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 275 Pa. Super. Page 537]
This is an appeal from an order denying a motion filed by appellant as the plaintiff below for a new trial limited to the issue of damages.
The case arises from an automobile accident that occurred on March 17, 1972, at approximately 8:40 p. m. Appellant described the accident as follows. She and a friend had been shopping at the York Mall in York County. Appellant got into the driver's side of her automobile; the friend occupied the right front seat. Appellant started the automobile, pulled out of the parking space, and drove down the aisle between the rows of parked cars. She stopped at the end of the aisle and looked both ways along the thoroughfare that intersected the aisle. She saw appellee coming toward her from her right. Since there was a stop sign against appellee, appellant thought he would stop, and she pulled slowly into the intersection to make a left turn. Suddenly her passenger shouted that appellee was running the stop sign. Appellant applied her brakes but appellee's car collided with the right front side of her car. The force of the collision threw appellant's passenger into her with such force that appellant was thrown against the door.
Appellant's passenger described the accident in the same way, including the fact that the force of the collision threw him across the seat into appellant and that she fell against the door.
Appellee disputed appellant's description of the accident. He testified that he had stopped at the stop sign and was past it and proceeding toward the parking aisle at moderate
[ 275 Pa. Super. Page 538]
speed when appellant suddenly pulled out in front of him, causing the collision. He counterclaimed for the damages to his automobile in the amount of $403.17.
Appellant testified that she spent $570.88 to repair the damages to her automobile. She also claimed that she suffered physical injuries as a result of the collision. She admitted having suffered a previous injury to her neck and back in an earlier automobile accident in 1968. She testified, however, that the discomfort she had experienced because of the 1968 injuries had subsided by the time of the 1972 accident and that she had been able to resume normal activities; she said that she had stopped seeing the doctor for the 1968 injuries some time in 1970. She described the injuries suffered in the 1972 accident as follows. On the day after the accident she woke up with pain in her neck. She went to her family physician and was given muscle relaxants. She also went to see Dr. John Danyo, the physician who had treated her back and neck after the 1968 collision. Dr. Danyo examined her and told her to wear a collar and to exercise but to return if the pain did not subside. When the pain did not subside, he sent her for physical therapy and warned that an operation might be necessary. In October 1974, she was admitted to the hospital for a myelogram examination, and after this examination, she was operated on. The surgery involved removing a piece of bone from her hip and using it to replace the damaged portion of a disk in her neck. She remained in the hospital for two weeks. She incurred medical bills of $2,870.89 and lost $270.60 in wages. She testified that she still had pain and discomfort.
Dr. Danyo also testified as follows. He first saw appellant in June 1968, after the 1968 collision. He diagnosed her injury as whiplash of the neck and a sprain of the ribs. He continued treating her for these injuries until 1970. She did not return for treatment until March 1972, after the 1972 collision. He noted that she had a 45% restriction of motion in her neck and some low back strain, and ordered her to ...