McMonagle v. Simpers

267 Pa. 117 | Pa. | 1920

Opinion by

Mr. Chief Justice Brown,

In crossing over North Twenty-third street, in the City of Philadelphia, Marie McMonagle, a child nine years of age, was struck by an automobile owned by the defendant and operated by his chauffeur, and, in this action, brought for the girl by her father and next friend, who sues also in his own right, to recover damages for the injuries sustained, a verdict was returned in favor of each. The main complaint of the defendant on this appeal from the judgments against him is of the refusal of the trial judge to direct a verdict in his favor, and of the court’s subsequent denial of his motion for judgment non obstante veredicto, his contention being that the negligent operation of his car had not been established. This question was submitted to the jury in a general charge, to which no exception was taken.

Defendant’s version of the accident, supported by testimony, was that the child had suddenly darted from behind a moving trolley car in front of the automobile, which was being driven at a moderate rate of speed, and the jury were properly instructed that, if they found from tlie testimony that this was true, there could be no recovery. But the case as presented by the plaintiff was totally different, as a brief recital of the substance of the testimony in support of it will clearly show. Brandy-wine street runs east and west and bisects Twenty-third street at a point between Spring Garden and Green streets. On October 30,1918, at about two o’clock p. m., Marie McMonagle, the injured child, walked along the north side of Brandywine street, in the direction of Twenty-third street, and when she reached the northeast corner of these streets, looked north and south for passing vehicles before starting to cross over to the west side of Twenty-third street. She noticed a northbound trolley car at Spring Garden street, and waited on the sidewalk until it passed by. She then started over the street, walking, and not running, on a flagstone crossing, and when within two feet of the west curb, and about to step upon it, was struck by the defendant’s car. She was found under one of its rear wheels, and this was some evidence that it was not running at a moderate rate of speed. It further appeared that the chauffeur gave no signal of the approach of his car. Twenty-third street is twenty-six feet wide from curb to curb, with a trolley track in the centre. From the west rail of the track to the west curb of the street there was a space of more than nine feet, and even if the child did pass over the trolley track immediately after the street car had passed Brandywine street, the chauffeur must have seen her, if, as was his duty, he had been looking, as he approached the street crossing, to see whether pedestrians were upon it, for his car did not strike the child until she had walked over the entire space between the trolley track and the curb. That he was not looking was a fact to be most fairly found from his own testimony, for he stated that he did not see the child until the automobile struck her. In view of all this, the case was clearly for the jury on the question of defendant’s negligence, and the direction of a verdict in his favor would have been error: Streitfeld v. Shoemaker, 185 Pa. 265; Cramer v. Aluminum Co., 239 Pa. 120; Smith v. Standard Steel Car Co., 262 Pa. 550; Schoepp v. Gerety, 263 Pa. 538. The first and second assignments are dismissed.

The other complaint of the appellant is of the ex-cessiveness of the verdicts. This was for the court below in the first instance, and its refusal to reduce or set aside the verdicts cannot be regarded as an abuse of discretion here reviewable, unless the amounts awarded to the plaintiffs are so grossly excessive as to shock our sense of justice, and the impropriety of allowing them to stand is most manifest: Dunlap v. Pittsburgh, Harmony, Butler & New Castle Ry., 247 Pa. 230; O’Hanlon et al. v. Pittsburgh Rys., 256 Pa. 394; Scott v. American Express Company, 257 Pa. 25.

In view of the testimony as to the injuries sustained by the minor plaintiff, the verdicts are not so excessive and unjust as to have made it the clear duty of the court below to set them aside, and that its refusal to do so was such an abuse of discretion as must be corrected. Before she was injured Marie McMonagle was in perfect health. Pain and suffering followed her injuries, and the testimony of medical experts who examined her was that the bony structures of her pelvic cavity were crushed; that the cavity was distorted and permanently deformed; that her injuries would result in the lack of development of her sexual organs; that the condition of her pelvis is incurable, and she will have a permanent limp in her walk. From all the testimony offered by the plaintiff father as to the permanent injuries to his child, neither the verdict for him nor for her was so excessive as to imperatively call for its disturbance by the court below on that ground alone.

The fifth assignment is that the court erred in permitting a physician to testify that the plaintiff, Marie McMonagle, would not be able to become a mother. The witness did not so testify. On the contrary, he stated that the girl could become pregnant, but as to her being able to become a mother he declined to express an opinion. All of his testimony, however, as set forth in the fifth assignment, was stricken ont, and the next and last assignment is to the failure of the court to caution the jury against the effect of it. We discover nothing in it, taken in connection with the other testimony in the case, against which they ought to have been cautioned; but, be this as it may, no request was made to the trial judge for a word of caution to them.

All of the assignments of error are overruled and the judgment is affirmed.