Dougherty v. Philadelphia & West Chester Traction Co. , 1916 Pa. Super. LEXIS 59 ( 1916 )

Opinion by

Orlady, P. J.,

The inquiry on this appeal is limited to the assignments of error as presented. It is assumed as undisputed, that the plaintiff sustained some injury wjien she alighted from the defendant’s car on June 13,1913. As she described it “just as I was getting my right foot down, he (the motorman) blew the whistle and the car started, and I got a kind of shock, and the step of the car scratched my shin.” The sole defense in the court below and on this appeal is that “the plaintiff failed in her duty to secure prompt and proper medical attention.”

The plaintiff was 56 years of age; lived separate from her husband; was engaged in general house work and office cleaning, at a wage of from $7 to $8 per week. After the accident, on her return home after experiencing “a most dreadful pain in the injured leg” she applied local remedies — a zinc salve and peroxide, — but the injury becoming more serious five days later, she applied to a physician for relief. Her condition at the time of the accident, during the treatment, and at the time of the trial was fully investigated on the trial. The contention. of the defendant, and authorities are cited to support it, is that it was her duty to use ordinary and ’reasonable’diligence in securing medical or surgical aid after receiving her injury; that it was her bounden duty to employ such aid as ordinary prudence would require under the circumstances; and that not having done so, as claimed by appellant, the uncontradicted evidence showing that her injuries were caused by the neglect of a duty which she owed herself as well as to the defendant, to wit: to obtain prompt and proper medical treatment, her injuries were not solely caused by the alleged negligence of the defendant, the court below should have given binding directions to find in its favor.

The law does not impose so rigid a procedure on the part of a woman in the plaintiffs circumstances. She evidently minimized the character of her injuries, but she promptly sought relief from the usual and simple remedies in general use by persons in her walk of life. Unfortunately for her, the case was complicated by the fact of her having varicose veins, which materially added to the degree of her injuries. The size of the verdict indicates, at least, that it was intended as but fair compensation for the pain and suffering resulting from the admitted results of the accident. This plaintiff could not be expected to measure accurately the progress of her disease, and her delaying for five days the employment of a physician should not be considered as contributory negligence in her omitting a duty which she owed to herself. However this phase of the question was fully and fairly submitted to the jury. Neither in the court below nor on this appeal is there any question raised as to unusual or extraordinary character of the sudden starting of the car while she was in the act of stepping from it to the roadway, and the defense is limited, to her alleged negligence in not more promptly applying for medical relief for her injuries, we find no such error in the record as would warrant a reversal of the judgment.

The judgment is affirmed.