Florig v. Sears, Roebuck & Co.

Dissenting Opinion by

Mr. Justice Musmanno:

On March 7, 1951, while visiting a warehouse belonging to Sears, Rosbuck & Co., in Norristown, Emil J. Florig, the plaintiff in this case, fell and sustained injuries to his left hand and wrist and back. His physician, Dr. Herbert Kaplan, informed him, after treating the hand for some time, that the repairing process was a slow one and he advised Florig to use the affected hand, lest it waste and atrophy. In obedience to this direction, Morig resumed his work as a painter.

On June 14, 1952, while he was painting a roof, the ailing hand gave way (the plaintiff described it as a “collapse”), and, being unable to prevent his sliding' and rolling down the slope on which he was working, he dropped to the cement floor beneath, damaging his right heel to such an extent that he has now practically lost the use of his foot. He sued Sears, Roebuck & Co., claiming that his second accident was the result of his debilitated hand which had been injured through the negligence of the defendant at the time of the first accident. The jury returned a verdict of $11,000 in his favor. The defendant moved for a new trial, contending that there was no causal connection between the first and second accidents. The lower Court refused the new trial, and this Court is reversing the lower Court.

Of course, if the second mishap was in no way a sequel to the first one, the defendant is entitled to a new trial for it would be impossible for this Court or any Court to determine how much the jury allowed the plaintiff for each misfortune.

This appeal really presents only one question, namely, was the second fall so inevitably a consequence of the first fall that the event of March 7, 1951 can be considered the cause and the event of June 14, 1952, the effect? This is a medical-factual question, not an appellate judicial one, and we are outside our field in trying to apply a juridical stethoscope to the heart of the problem.

Dr. Kaplan, the plaintiff’s physician, testified: “In my opinion the cause of the collapse of the wrist on that day was due to the causalgia-like pain which had. 'been persisting since the day of the injury. If I can simplify it, I will say, in my opinion, that this could have caused him to slide from the roof.”^*

The Majority Opinion sees some fault in the doctor’s use of the phrase “could have caused him”, but it overlooks the more essential and crucial part of the Doctor’s answer, namely, “the cause of the collapse of the wrist on that day was due to the causalgia-like pain which had been persisting since the day of the injury (the injury of March 7, 1951].” The doctor expressed no doubt about the collapse of the wrist and what caused it, namely, the first accident, and then added that this condition “could have caused” him to slide from the roof. Here he was simply being candid. He would have had to be dishonest or he would have had to be an infallible retrospective Cassandra to say positively: “I know of my personal knowledge that the collapse of Florig’s wrist brought about the injury to his foot.”

How would the doctor, or anyone not actually on the roof with the plaintiff, know the mechanics of the plunge from the top of the house to the ground? How could the doctor testify to what was beyond the ken of his knowledge? He did state categorically that the wrist collapsed because of the pain and weakness resulting from the first accident. It was up to the jury to decide whether a workingman 55 years of age on a slanting roof could arrest a precipitate descent when all power drained from one of his wrists, and Ms entire left arm thus became an impediment instead of a staff of resistance to the forces of gravitation.

There must be added to this picture the fact that the plaintiff himself positively testified that it was the failure of his left wrist which caused the disastrous drop. After hearing all this testimony the jury did find a causal connection between the first accident and the second.

If a hospital patient, suffering from an injured foot due to a tortious accident, slips and falls, because of the weakness of that foot, and breaks a leg, the person responsible for the injured foot will be liable for the broken leg as much as if he had struck at the leg during the commission of the original tort. Nor would the situation change if the patient had left the hospital and broken his leg subsequently, so long as that subsequent break was due to the weakness of the foot. Thus, the only inquiry before us is whether there was sufficient evidence upon which the jury could base its conclusion that Florig fell from the rooftop because of his inability to hold on to his precarious perch as a result of the weakness of his left wrist, for which the defendant was admittedly responsible. I agree with the lower Court that there was such evidence. It is to be noted that not even the defendant’s doctor ventured to say that the plaintiff’s second accident was not caused by the defection of the plaintiff’s exploded and helpless wrist.

The lower Court, in disposing of the defendant’s motion for judgment n.o.v., properly and rationalistically said: “The jury may have inferred that the second fall resulted from the original injury. If so, such inference was supported by the testimony of two medical experts and also by the testimony of the plaintiff himself. There being a total absence of any evidence which pointed to any other cause of the second fall, we are of the opinion that the plaintiff’s evidence furnished a rational basis for a verdict including damages resulting from the second accident.”

I agree with this statement. Judge Forrest, who wrote the Opinion in the lower Court, cited as authority in behalf of the Court’s position the case of Bender v. Welsh, 344 Pa. 392, 398. I believe that what we said in that case is still good law, namely: “Evidence of subsequent injury is admissible to affect the measure of damages on the original injury only if the subsequent injury was proximately caused by the original negligence. Defendants contend that Mrs. Bender slipped from an independent cause and that therefore the original accident was in no way responsible, citing Wineberg v. DuBois Boro., 209 Pa. 430. In that case plaintiff’s second fall ‘was not caused by the injured leg, but by the slipping of the sound foot’. In the instant case plaintiffs subsequent fall was attributable to the failure of the injured limb to function properly, and this was the result of the original injury. The evidence was therefore properly admitted: Marshall v. Pittsburgh, 119 Pa. Superior Ct. 189, 197-8; Gallagher v. Hudson Coal Co., 117 Pa. Superior Ct. 480, 483.”

* Italics mine.