Kehoe v. Allentown & Lehigh Valley Traction Co.

Opinion by

Mr. Chief Justice Stebbett,

As to the preliminary question in this case, it is sufficient to say that the learned trial judge’s certificate of even date with the motion to quash the appeal, etc., is a sufficient answer thereto and the motion is accordingly denied.

It was of course incumbent on the plaintiff to prove that the personal injury of which she complained was the direct result of defendant company’s negligence. For that purpose testimony was introduced which tended to prove such a state of facts as warranted the verdict on which the judgment was entered. As stated by defendant’s counsel, the entire burden of the defense was practically made up of these two propositions: (1) “ That the injury complained of was not the result of the accident,” and (2) “assuming that it was, then the injury was not of a permanent character, but one that could quickly and permanently be cured by proper medical treatment, namely, by a simple surgical operation, attended with no pain (if anaesthetics were used or the patient etherized) and free from serious danger.”

Without attempting to review or discuss the testimony upon which the parties respectively relied, it is sufficient to say that, upon the evidence properly before the court, the case was one that involved questions of fact which the learned trial judge was bound to send to the jury for their consideration and determination. The case was accordingly submitted to them in a clear, comprehensive and fully adequate charge in which there appears to be no substantial error. All the questions of fact' upon which the right of the plaintiff to recover depended were thus definitively settled by the verdict in her favor. In view of the evidence as to the serious and probably permanent character of plaintiff’s injuries, the sum awarded her as damages cannot be regarded as excessive.

The subjects of complaint in the first four specifications are the court’s answers to plaintiff’s points for charge, recited therein respectively. The evidence tended strongly to prove the facts of which each of these points is predicated, and hence the plaintiff had an undoubted right to request that the jury be instructed as to the law applicable thereto. The court’s answer to one of them was: “Affirmed as to the machinery,— there is no evidence as to the roadway.” This qualification was strictly proper. The others were rightly affirmed without any qualification. Our examination of the record has failed to disclose any error in either of them.

In affirming the points covered by the third and fourth specifications, supra, the court, in the language of the points, instructed the jury: (1) If they “believe that the surgical operation, necessary to relieve or cure the plaintiff was a serious or critical operation necessarily attended with some risk of failure, then the plaintiff was not bound in law to undergo a serious and critical surgical operation which would necessarily be attended with some risk of failure.” (2) If they “believe that such operation was dangerous and critical and attended with risk of failure she was privileged to exercise the liberty of choice, under such circumstances, as to whether suffering and feebleness resulting from the injury would be endured or whether the surgeon’s knife should be used.”

These two points were doubtless presented for the purpose of calling attention to the second ground of defense above quoted, and eliciting explicit instructions as to the law applicable thereto. In view of the evidence relating to the subject, there cannot be any doubt as to the correctness of the instructions given by thus affirming the points. Indeed, the learned counsel for defendant, in their argument frankly admit the fact by saying, “ We do not complain that the answers .... were in themselves an incorrect statement of the law, but we do complain that these answers, taken in connection with the entire omission of the trial judge to refer to the case of the defendant (company) or its testimony on this subject, made the charge inadequate and misleading.” This complaint, that the charge was thus made inadequate and misleading, is unwarranted and cannot be sustained. Substantially the subjects of complaint are embraced in the twelfth and thirteenth specifications. As to the ground of defense referred to in the first of these specifications, the same was considered by the learned trial judge at some length and, while the specific items of evidence were not reviewed, the general features of the testimony relating thereto were carefully and impartially considered, as is shown by that part of -the charge recited in the eighth specification. If more specific instructions were desired they should have been requested. No requests for instruction were presented by the defendant company. Such complaints as are now made on its behalf come with bad grace; and this is especially so where the instructions are as full and comprehensive as they are in this case. If, as whs said by this Court in Com. v. Zappe, 153 Pa. 501, the trial “judge fails to charge on some point which counsel regard as essential to the defense, it is only fair to him that his attention should be called to it before the jury leave the bar, in order that he may correct any omission, if any has been made.” Tins obviously just and indispensable rule forcibly applies to both specifications.

The fifth to eleventh specifications, inclusive, are to portions of the charge recited therein. Considered in connection with other parts of the general charge, there is no error in either of these excerpts. As already stated, the charge as a whole is clear, comprehensive, fully adequate and free from substantial error. The case was carefully and correctly tried, and the judgment should not be disturbed.

Judgment affirmed.