Guckavan v. Lehigh Traction Co. , 203 Pa. 521 ( 1902 )

Opinion by

Mr. Justice Bbown,

The refusal of the court below to affirm defendant’s first point is the subject of the sixth assignment of error. The reason given by the defendant for asking for binding instructions in its favor was, that the plaintiff had not shown that the injuries of which she complained had resulted from her fall from the car. The plaintiff testified that, in the derailment of the car, she was thrown from it, and the jury were fully justified in believing this statement. Prior to the accident she was a healthy woman — a healthy, able-bodied woman — but ever since, according to her own testimony and that of several witnesses, her condition has been distressing. One physician, who had known her for twenty-five years as “a strong, healthy, able-bodied woman,” testified that, since she was thrown from the car, she had aged considerably, had a nervous tremor, had lost in weight and had heart failure. He further testified that, in his judgment, her sufferings would be permanent. Another physician, called as an expert, stated that the plaintiff had progressive paralysis of the spinal cord, was permanently disabled, that the trouble would constantly increase and that a concussion or blow upon the spine would be a cause of the troubles he described. It was, therefore, not for the court to say that no cause or connection had been shown between the accident and the injuries of which the plaintiff complained; but it was for the jury to determine whether the evidence showed, or tended to show, such connection, and the learned judge properly left it to them to say whether a reasonable inference could be drawn that the fall from the car was the actual cause of Mrs. Guckavan’s changed and enfeebled condition.

The appellant complains of certain questions that were allowed to be put to its witness, Dr. MacKellar, on cross-examination. The examination in chief of this witness, which was hurtful to the plaintiff, would naturally have impressed the jury that, when he called to examine the plaintiff on the day of the accident, and continued to visit her ten or twelve times, he had done so either at her instance or by direction of some member of her family. It was not developed by the company that he had been promptly sent to see her by its direction; but on his cross-examination, this fact for the first time was properly brought out, and, when he stated that the company had sent him, he was further properly asked whether he was the company’s physician, to which he answered that he was not. To affect his credibility, the questions complained of by the first, second, third, fourth and fifth assignments of error were then asked, and ought not to have been disallowed, for it was legitimate for the plaintiff to show, by cross-examination, that the witness, who had stated he was not the company’s physician, had repeatedly, at its instance, and as its representative, gone to examine persons hurt in accidents on its road ; and that he had been so employed from time to time by the company, was information properly drawn from the witness by the plaintiff for the consideration of the jury in determining what effect they ought to give to his testimony.

If it appeared from the record that counsel for appellees was guilty of the bad faith charged to him by the seventh assignment of error, we would unhesitatingly reverse this judgment. The record, however, does not only not disclose the misconduct complained of in connection with the affidavit of Abner Smith, but the charge is unqualifiedly denied by the accused. In Commonwealth v. Weber, 36 W. N. C. 193, and Holden v. Penna. R. R. Co., 169 Pa. 1, we have clearly indicated how objectionable remarks of counsel can be made part of the record brought up for review, and if, in this case, such remarks were made, counsel now complaining of them failed to do what he ought to have done when they were uttered. The assignments are all overruled and the judgment is affirmed.