Martin v. Pittsburgh Railways Co. , 238 Pa. 528 ( 1913 )

Opinion by

Mr. Justice Moschzisker,

H. A. Martin and Cora D. Martin, his wife, brought this action to recover damages alleged to have been suffered by them as a result of the negligence of the defendant company. The plaintiffs averred that on July 30, 1908, while Mrs. Martin was in the act of boarding an open summer car of the defendant company, it suddenly started and she was thrown back against its side; that she was pregnant at the time and a miscarriage occurred the following day. Her medical witnesses testified that she had had a miscarriage, that her womb was displaced and congested,) that in their opinion these physical conditions were attributable to the accident as described by the plaintiffs and their witnesses, and that her injuries would be ..permanent unless corrected by a surgical operation. It appeared that the plaintiff had already submitted to one operation for the purpose of having the womb placed in its normal position, but that it had not proved successful. The medical experts testified that if Mrs. Martin would go through another operation it would probably effect a permanent cure, but they all admitted that there was a percentage of failures in such cases.

The verdicts were for the plaintiffs, and the defendant has appealed. The only error assigned is the instructions to the jury on the effect of Mrs. Martin’s refusal to submit to another operation. The appellant contends that the instructions were not so clear and explicit "that the jury would understand that if they believed from the testimony that a cure could be effected, the measure of damages would be the cost and expense of the necessary operation and compensation for pain and suffering.” It is not necessary to determine whether or not the instructions are properly subject to this criticism, for Mrs. Martin had already suffered one operation in order to cure the womb trouble which resulted from the accident, and it is apparent from the testimony that the additional operation suggested by the medical experts for the defense was a serious one, attended with some risk of failure, and not a simple one; therefore her refusal to undergo it would in no sense affect her right of recovery. The rule laid down in Kehoe v. Traction Co., 187 Pa. 474, 485, concerning operations of the former nature would apply and not that referred to in Leitzell v. Delaware, Lackawanna & Western R. R. Co., 232 Pa. 475, governing simple operations. Taking the charge as a whole we do not see that the defendant suffered any harm from the manner in which the case was submitted to the jury.

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