Wyatt v. Russell

Argued May 25, 1932. These two appeals from orders of the court below refusing new trials, were argued together and will be here so considered. Both actions were the result of the same automobile accident. Myron E. Wyatt and his wife, Margaret E. Wyatt, were on a pleasure trip with appellant and his wife, traveling in a car owned and driven by appellant. Near Marion, Arkansas, in passing around a curve, on an upgrade, at night, the car skidded, went over an embankment, and struck a telegraph pole. Both Mr. and Mrs. Wyatt were seriously injured and were taken to a hospital in Memphis, Tennessee, where Myron Wyatt died soon after being admitted. Mrs. Wyatt was found to have fractures of the right shoulder and leg, a fractured sternum, fractured ribs, and other injuries. She remained in the hospital for three months, and upon leaving that institution went to defendant's home in Illinois for two weeks. After returning to her own home in Meadville, Pennsylvania, she was again under the doctor's care. The testimony shows she sustained serious and continuing, physical impairments. The jury awarded a verdict of $5,000 for the death of Myron E. Wyatt, and $8,500 in the action for injuries to his wife.

Defendant, in the suit to recover damages for Mrs. Wyatt's injuries, assigns as error on this appeal refusal of the court below to permit examination of one of plaintiff's witnesses, the doctor who attended her following her return home, on whether her permanent injuries might have been lessened by different treatment. This witness had no personal knowledge of plaintiff's condition until more than three months after the accident. Moreover, we find no evidence that Mrs. Wyatt failed to take advantage of all medical and surgical aid available to her at the hospital, or that she refused to take steps that would in any respect have improved her condition. Consequently, cross-examination of the witness along this line was properly excluded on the principle that "where a person is injured by another's negligence, and uses reasonable care in selecting a physician to attend him and in following his directions, then the one guilty of negligence is liable for the resulting injuries, even though a higher degree of medical skill might have minimized the injuries." See Hunt v. Boston Terminal Co.,212 Mass. 99.

Appellant also complains that he was not permitted to examine plaintiff relative to the speed at which defendant had driven on other trips, to establish plaintiff's contributory negligence in taking this journey with him. The law is well settled that negligence on a former occasion is not admissible to prove later negligence (Baker v. Irish, 172 Pa. 528, 531-2; Veit v. Class Nachod Brew. Co., 216 Pa. 29, 32), and " 'The same rule applies where the defense is that the injury was caused by plaintiff's own negligence. Men do not usually risk life and limb without motive, and the fact that a man has done so once or oftener, does not warrant the induction that he did so on the particular occasion in controvery:' " Veit v. Class Nachod Brewing Co., supra, quoting from Wharton's Law of Evidence, section 40.

Defendant's third assignment of error (in No. 227) is to the refusal of the court to withdraw a juror and continue the case, following a remark of counsel for plaintiff, in his argument to the jury on the subject of damages for Mrs. Wyatt's injuries. The trial judge states his recollection, and it is not disputed by defendant, that the jury were instructed to disregard the remark in question immediately upon defendant's objection to it. It does not appear however from the amount of damages awarded that the language objected to was harmful to defendant, for the award cannot be regarded as excessive.

In the suit for damages for the death of Myron Wyatt, the appeal is based on the refusal of the court below to permit examination of a witness as to the amount of capital the decedent had invested in the partnership business from which his income was derived. It was testified that decedent, who was actively employed in the partnership business, had for several years received therefrom a salary of $250 per month, from which he contributed $160 or more for the support of his family. On the authority of Boggess v. B. O. R. R. Co., 234 Pa. 379, the trial judge excluded evidence as to capital investment, holding that the earning power of decedent alone was to be considered in estimating damages. This instruction was clearly proper under the ruling of the case cited and the circumstances here present.

The opinion of the court below fully and carefully discusses the above and other points raised by defendant in his motions for a new trial, and we see no abuse of discretion in the refusal thereof.

Judgment is affirmed in both appeals.