Frysinger v. Philadelphia Rapid Transit Co. , 249 Pa. 555 ( 1915 )

Opinion by

Mr. Justice Potter,

This was an action of trespass brought by Edward J. Frysinger and Edna Carolina Frysinger, his wife, to recover damages for injuries alleged to have been sustained by the wife through the negligence of the defendant company. From the evidence offered on behalf of the plaintiffs it appears that on June 22,1913, they were passengers on a trolley car of defendant company run-ning from Chester to Media. While descending a hill on defendant’s single track road they saw another car approaching on the same track. Fearing a collision, they jumped from the car and Mrs. Frysinger fell to the ground. She claimed that the result of the shock was to leave her in a nervous condition, which was manifested chiefly by neuritis in her left arm. Upon the trial, evidence was offered on behalf of plaintiffs which established the facts of the accident, and medical testimony was offered tending to show the extent of Mrs. Frysinger’s injuries. Defendant did not dispute the testimony as to the accident, but submitted evidence tending to show that Mrs. Frysinger did not suffer from neuritis, but that her condition was properly described as neurasthenic, due largely to excitement caused by the pending litigation, which would probably pass away after the trial. The questions of defendant’s negligence and plaintiffs’ contributory negligence were submitted to the jury, who found a verdict in favor of plaintiffs. : From the judgment entered thereon defendant has appealed.

In-the fourth assignment of error, counsel for appellant allege that the court below erred when it said to the jury, “as in cases of this kind a great deal of medical testimony has been produced, and as usual about equally divided.” It is suggested that- in using this language, the court inadvertently, but practically intimated to the jury that the medical testimony was of little value, as it made about as much in favor of one side as the other. We think the statement did tend to minimize the force of the medical testimony, and it may have led the jury to practically disregard it.' To say that the medical testimony was about equally divided, was hardly accurate. It appears from the record, that two physicians testified that Mrs. Frysinger had neuritis, and one of them said that it was not likely that she would ever be entirely cured. But on the other hand, five physicians, including her regular medical attendant, who was called by plaintiffs in the first instance, testified that she did not have neuritis, was not permanently injured, and probably would be well as soon as the litigation was ended. The preponderance of the medical testimony was in favor of the contention of defendant, and this should have been pointed out to the jury, leaving to them the credibility of the witnesses, and the final determination of the question whether the weight of the evidence was upon one side or the other.

In the eleventh assignment of error, the question is raised, whether as proof of loss of earning power, evidence was properly admitted as to the amount which Mrs. Frysinger was able to earn as a professional pianist, at a period some two or three years prior to the accident. She had not engaged in this occupation for that length of time, and had apparently given it up, and there was no evidence that she intended to resume it. There was no medical testimony as to her inability to teach music. One of the physicians was of the opinion that she might suffer pain during a period of some two years, but he did not testify that it would be such as tó affect her earning power. Yet under the charge, the jury were at liberty in estimating the damages to take into consideration this alleged loss of earning power, based on her earnings at a previous period, when she was actively engaged as a professional musician. In referring to her occupation as such, the trial judge said to the jury, “Whether she would ever be engaged in it again, or intended to abandon it, we.don’t know..'----To what- extent this (her condition) would have an effect upon her ability to teach, would be conjecture, largely, of course. But you can take that into consideration in passing upon what will compensate her for her loss.” Yet the evidence showed that Mrs. Frysinger had not for two or three years been earning anything, and that she was at the time of the accident, a married tvoman, living with her husband. Nor was it shown that she had any intention of resuming her old occupation, or that any such intention was thwarted, as a result of the accident. Nor did it appear what the probabilities were of her being able to secure employment at her former occupation, in case she did wish to resume it. It is true that in proving loss of earning power, as an element of damage in case of personal injury, lessened capacity to earn in any available occupation may be shown, but it must appear by proper and satisfactory proof, and the amount of the loss must not be left to mere conjecture. Helmstetter v. Pittsburgh Rys. Co., 248 Pa. 422. With respect to the earning power of Mrs. Frysinger at the time of the accident, and as to the amount of its reduction by anything resulting therefrom, we feel that in submitting this case to the jury altogether too much was left to conjecture.

The fourth, sixth and eleventh assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.