Opinion by
Mr. Chief Justice Jones,
Charles H. Bell, the plaintiff, obtained a jury’s verdict against the defendant, Yellow Cab Company, in the sum of $29,150 as damages for personal injuries sustained by him as the result of his being hit by a taxicab of the defendant company on the morning of April 15, 1956, in Philadelphia. The defendant moved for judgment n.o.v. and for a new trial. The court en banc dismissed the motion for judgment n.o.v. but entered an order providing that if, within 20 days, the plaintiff filed a remittitur of so much of the verdict as exceeded $17,000, the motion for new trial would be dismissed; otherwise a new trial would be granted. The plaintiff did not file the stipulated remittitur and has appealed the consequent new trial order.
That the new trial was granted solely and exclusively because the trial court deemed the verdict excessive is not open to doubt. The fact of the remittitur alone conclusively evidences that none of the other reasons assigned by the defendant afforded any basis for the grant of a new trial. Obviously, the court could not properly have entered judgment for the plaintiff for the reduced amount, had the plaintiff filed the [335]*335remittitur required by the court, if there were other possible and undisposed of grounds assigned for a new trial. It may be postulated, therefore, that, had the court not thought the verdict excessive, it would have entered judgment thereon. That being so, the granting of a new trial, because of excessiveness of verdict, is reviewable here on the merits and not merely for a palpable abuse of discretion. See Culver v. Lehigh Valley Transit Company, 322 Pa. 503, 511, 186 A. 70. Cf. also Keefer v. Byers, 398 Pa. 447, 159 A. 2d 477.
The court gave no reason for ordering a reduction of the verdict nor for the amount of the reduction, apart from summarily stating that “Considering the record as a whole this court is of the opinion that the verdict of $29,150 is excessive. Consequently, a remittitur to $17,000 is ordered and plaintiff’s refusal to file said remittitur requires that a new trial be had.”
No serious doubt can reasonably be thought to exist as to the taxicab driver’s negligence in striking the plaintiff nor that such negligence was the proximate cause of the plaintiff’s injuries. The court below was obviously of the same opinion on the question of the defendant’s liability or it would not have indicated that it would enter a judgment for the plaintiff if a remittitur for the specified portion of the verdict was filed. In view of the testimony as a whole we are at a loss to understand why the court below felt impelled to order the remittitur as an alternative to the granting of a new trial. The record is replete with testimony which fully justifies the amount awarded the plaintiff.
The plaintiff’s injuries consisted of shock, cerebral concussion, contusion of the right kidney, acute lumbosacral sprain, traumatic bursitis of the greater trochanter, sprain of the medial collateral ligament of the right knee, injury to the lumbo-sacral spine, and multiple contusions, abrasions and lacerations. The osteopathic physician who treated the plaintiff for his [336]*336injuries attended Mm 122 times (17 being house and the remaining office visits). An orthopedic physician, who had first seen the plaintiff a month after the accident and who had re-examined him shortly before the trial began (which was two and one-half years later) testified that, at the latter time, the plaintiff was still suffering intermittent pain in his right hip area, an inability to-lie-on his right side, pain in his back, which was aggravated by any bending, a limp in walking, that he must continuously wear a back brace or support, that he was between 30 and 40% disabled, and that this extent of disability would be permanent. The osteopathic physician testified that his disability w.as between 50% and 60%. There was ample testimony as to the plaintiff’s pain and suffering, particularly, in the lower back and spine.
At the time of the accident, the plaintiff was fifty-five years old. For ten years preceding, he had owned, and operated with the assistance of his wife, a pet and sport supply store in Philadelphia known as Bell’s Sport Center. He conducted the business, which was a relatively small one, on the first floor of his residence, he and his wife living on the second floor.
In. order to establish the plaintiff’s loss of earnings and diminution of his future earning power, due to the injuries he suffered in the accident, he was permitted to testify, without objection from the defendant, that his net income from his business in 1955 (the year preceding the accident) was $3,982.55. He also testified, again without objection from the defendant, that his net income from the business in 1956, the year of the accident, was $1,479.78, or a net difference in income of roundly $2,500. There is further testimony that the plaintiff was forced because of his incapacity to close out his business; that he has since been unable to obtain gainful employment; and that his wife, who formerly assisted in his store, has been compelled to [337]*337take outside employment for the support of herself and husband.
On the basis of the plaintiffs injuries and damages, it is not discernible how the court below could conclude that the jury’s verdict was excessive. However, the appellee correctly argues that, regardless of the question of excessiveness of verdict, we may affirm the action of the court below for any valid reason appearing of record even though it was not relied upon or adjudicated by the court as support for its new trial offer. As we have already pointed out, the record in this case conclusively establishes that excessiveness of the verdict was, in the opinion of the court below, the only valid ground for granting a new trial. Nor can the concluding sentence of the court’s opinion that, “Since defendant has not appealed from our disposition of its post trial motions, we do not herein pass upon any question other than the amount of the Plaintiff’s verdict” serve to imply that other reasons for a new trial possibly existed. The lower court’s indicated willingness to enter judgment on the verdict; if the plaintiff assented to a reduction-in the amount, precludes the possibility at least in the thinking' of the court, that Other reasons for the new trial can be cited. Even so, it is nonetheless the appellee’s privilege to advance other reasons in asserted justification of the new trial order if such there be.
To that end, the appellee contends that the trial judge erred in admitting in evidence the testimony of the plaintiff’s diminished income from- his business, after his injury and consequent inability to attend to it, for the purpose of establishing"his earning capacity, and loss of earnings. But, the appellee is without standing to press this complaint. The testimony as to the plaintiff’s earnings from his business the year prior to the accident and his diminished earnings from the same source the year following the accident was re[338]*338ceived in evidence without objection from the defendant company. The appellee cannot, therefore, be permitted to use the unobjected to admission of such evidence as the predicate of alleged trial error. For failure to object to the admission of evidence timely, counsel may not, as a matter of right, complain later. As we observed in Keefer v.
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Opinion by
Mr. Chief Justice Jones,
Charles H. Bell, the plaintiff, obtained a jury’s verdict against the defendant, Yellow Cab Company, in the sum of $29,150 as damages for personal injuries sustained by him as the result of his being hit by a taxicab of the defendant company on the morning of April 15, 1956, in Philadelphia. The defendant moved for judgment n.o.v. and for a new trial. The court en banc dismissed the motion for judgment n.o.v. but entered an order providing that if, within 20 days, the plaintiff filed a remittitur of so much of the verdict as exceeded $17,000, the motion for new trial would be dismissed; otherwise a new trial would be granted. The plaintiff did not file the stipulated remittitur and has appealed the consequent new trial order.
That the new trial was granted solely and exclusively because the trial court deemed the verdict excessive is not open to doubt. The fact of the remittitur alone conclusively evidences that none of the other reasons assigned by the defendant afforded any basis for the grant of a new trial. Obviously, the court could not properly have entered judgment for the plaintiff for the reduced amount, had the plaintiff filed the [335]*335remittitur required by the court, if there were other possible and undisposed of grounds assigned for a new trial. It may be postulated, therefore, that, had the court not thought the verdict excessive, it would have entered judgment thereon. That being so, the granting of a new trial, because of excessiveness of verdict, is reviewable here on the merits and not merely for a palpable abuse of discretion. See Culver v. Lehigh Valley Transit Company, 322 Pa. 503, 511, 186 A. 70. Cf. also Keefer v. Byers, 398 Pa. 447, 159 A. 2d 477.
The court gave no reason for ordering a reduction of the verdict nor for the amount of the reduction, apart from summarily stating that “Considering the record as a whole this court is of the opinion that the verdict of $29,150 is excessive. Consequently, a remittitur to $17,000 is ordered and plaintiff’s refusal to file said remittitur requires that a new trial be had.”
No serious doubt can reasonably be thought to exist as to the taxicab driver’s negligence in striking the plaintiff nor that such negligence was the proximate cause of the plaintiff’s injuries. The court below was obviously of the same opinion on the question of the defendant’s liability or it would not have indicated that it would enter a judgment for the plaintiff if a remittitur for the specified portion of the verdict was filed. In view of the testimony as a whole we are at a loss to understand why the court below felt impelled to order the remittitur as an alternative to the granting of a new trial. The record is replete with testimony which fully justifies the amount awarded the plaintiff.
The plaintiff’s injuries consisted of shock, cerebral concussion, contusion of the right kidney, acute lumbosacral sprain, traumatic bursitis of the greater trochanter, sprain of the medial collateral ligament of the right knee, injury to the lumbo-sacral spine, and multiple contusions, abrasions and lacerations. The osteopathic physician who treated the plaintiff for his [336]*336injuries attended Mm 122 times (17 being house and the remaining office visits). An orthopedic physician, who had first seen the plaintiff a month after the accident and who had re-examined him shortly before the trial began (which was two and one-half years later) testified that, at the latter time, the plaintiff was still suffering intermittent pain in his right hip area, an inability to-lie-on his right side, pain in his back, which was aggravated by any bending, a limp in walking, that he must continuously wear a back brace or support, that he was between 30 and 40% disabled, and that this extent of disability would be permanent. The osteopathic physician testified that his disability w.as between 50% and 60%. There was ample testimony as to the plaintiff’s pain and suffering, particularly, in the lower back and spine.
At the time of the accident, the plaintiff was fifty-five years old. For ten years preceding, he had owned, and operated with the assistance of his wife, a pet and sport supply store in Philadelphia known as Bell’s Sport Center. He conducted the business, which was a relatively small one, on the first floor of his residence, he and his wife living on the second floor.
In. order to establish the plaintiff’s loss of earnings and diminution of his future earning power, due to the injuries he suffered in the accident, he was permitted to testify, without objection from the defendant, that his net income from his business in 1955 (the year preceding the accident) was $3,982.55. He also testified, again without objection from the defendant, that his net income from the business in 1956, the year of the accident, was $1,479.78, or a net difference in income of roundly $2,500. There is further testimony that the plaintiff was forced because of his incapacity to close out his business; that he has since been unable to obtain gainful employment; and that his wife, who formerly assisted in his store, has been compelled to [337]*337take outside employment for the support of herself and husband.
On the basis of the plaintiffs injuries and damages, it is not discernible how the court below could conclude that the jury’s verdict was excessive. However, the appellee correctly argues that, regardless of the question of excessiveness of verdict, we may affirm the action of the court below for any valid reason appearing of record even though it was not relied upon or adjudicated by the court as support for its new trial offer. As we have already pointed out, the record in this case conclusively establishes that excessiveness of the verdict was, in the opinion of the court below, the only valid ground for granting a new trial. Nor can the concluding sentence of the court’s opinion that, “Since defendant has not appealed from our disposition of its post trial motions, we do not herein pass upon any question other than the amount of the Plaintiff’s verdict” serve to imply that other reasons for a new trial possibly existed. The lower court’s indicated willingness to enter judgment on the verdict; if the plaintiff assented to a reduction-in the amount, precludes the possibility at least in the thinking' of the court, that Other reasons for the new trial can be cited. Even so, it is nonetheless the appellee’s privilege to advance other reasons in asserted justification of the new trial order if such there be.
To that end, the appellee contends that the trial judge erred in admitting in evidence the testimony of the plaintiff’s diminished income from- his business, after his injury and consequent inability to attend to it, for the purpose of establishing"his earning capacity, and loss of earnings. But, the appellee is without standing to press this complaint. The testimony as to the plaintiff’s earnings from his business the year prior to the accident and his diminished earnings from the same source the year following the accident was re[338]*338ceived in evidence without objection from the defendant company. The appellee cannot, therefore, be permitted to use the unobjected to admission of such evidence as the predicate of alleged trial error. For failure to object to the admission of evidence timely, counsel may not, as a matter of right, complain later. As we observed in Keefer v. Byers, supra, objections to offers or admissions of evidence and exceptions to rulings thereon serve a broader useful purpose than merely protecting the right of the objector or exceptant. The opposing party, as well as the court, is entitled to have such procedures pursued timely if he is to be impaled upon their subject-matter later.
If defendant’s counsel thought that the testimony which the plaintiff adduced to establish his loss of earnings was not competent or was inadequate for the purpose, there was ample opportunity by cross-examination to inquire into the evidentiary value of the plaintiff’s earnings from his business at all relevant times. But, the defendant did not question the means adopted by the plaintiff at trial to prove his pecuniary-loss due to his injuries which the defendant had inflicted. Nor did the defendant object to the admission of this testimony and, thereby, evoke a ruling by the court with respect to its admissibility. Nor did the defendant take any exception to the court’s charge with respect to the plaintiff’s losses or how the jury should arrive at the damages due him in the event they found for the plaintiff. All that counsel requested from the court in this connection was a further instruction that “they [i.é., the jury] are not to understand the lengthy portion of [the] charge concérhing the possible damages as any indication on [the court’s] part.” A party may not sit by silent, take his chances on a verdict, and, if it is adverse, then complain of matter which, if error, could have been eradicated during the trial if brought to the court’s attention properly and [339]*339timely. Keefer v. Byers, supra; Commonwealth v. Razmus, 210 Pa. 609, 611, 60 A. 264.
The testimony concerning the plaintiffs loss of earnings having been received in evidence without objection, it cannot now be justly eliminated. The only presently permissible question regarding it is its probative value. Ordinarily, earnings which represent the result of combined capital and personal services is not capable of establishing the earning power of the servitor. Where, however, the business is small and the income which it produces is principally due to the personal services and attention of the owner, the earnings of the business may afford a reliable criterion of the owner’s earning power. As recognized in Offensend v. Atlantic Refining Company, 322 Pa. 399, 404-405, 185 A. 745, “The general rule is that profits derived from a business are not to be considered as earnings and cannot be admitted as a measure of loss of earning power, but where they are almost entirely the direct result of personal management and endeavor, they are an accurate measure of earning capacity and admissible as such: Dempsey v. City of Scranton, 264 Pa. 495, and authorities cited therein; Pietro v. P. R. T. Co., 298 Pa. 423.” It was on this theory that the testimony of the plaintiff’s diminished earnings was introduced and the trial judge acted properly, in the circumstances, in receiving it in evidence for the purpose for which it was offered. The plaintiff, himself, was an avid sportsman and many of his patrons were persons who sought him out because of the many and various kinds of practical information and advice he could give them concerning hunting, fishing, the feeding and care of pets, repairing equipment, etc. When, because of the injuries he suffered in the accident, he was no longer able to attend to his business, it declined in the following year to the extent already stated.
[340]*340. Defendant made no effort by cross-examination to impair the worth of the plaintiff’s testimony as to his lost earnings following the accident. The evidentiary situation is much the same as in the Offensend case, supra, where the defendant contended that the plaintiff was obliged to show by books, records, or accounts of some kind, that his statement of net earnings was correct. We rejected the contention (p. 405) because the defendant had been “afforded a full opportunity to bring out on cross-examination the manner in which [the plaintiff] arrived at his figures, and, failing to avail himself of this opportunity, he cannot now complain the estimate was not in fact accurate.” When the business is small and the predominating factor in its success is the directing and working genius of the owner, such a business can be characterized as personal to that individual. Therefore, “Each case must depend on the nature and extent of the business, the amount of personal direction and labor of the party engaged in connection therewith, as well as the amount of capital invested and the labor employed”: Baxter v. Philadelphia & Reading Railway Company, 264 Pa. 467, 475, 107 A. 881.
• In the instant case, the testimony justified the conclusion that the earnings from the plaintiff’s small business were primarily the result of his personal attention and labor.. The trial judge did not err, therefore, in submitting the testimony to the jury as a basis for determining his loss of. earnings and the value of the services which he was capable of performing before the accident, and the extent of the limitations thereafter on his capacity to work at gainful employment.
Several items of additional business expense to the plaintiff, due to his-incapacity from his injuries, were testified to by him which were obviously duplications of expenses embraced in his computation of net earnings. This clearly appears. After the plaintiff had [341]*341testified without objection that it was necessary, following his injury, for him to employ a woman clerk at $30 per week to assist his wife in tending store and a delivery man one day a week at $18 for the day, to cover his food-for-pets route, which he had formerly done himself, he then testified to his net earnings for the year preceding and for the year succeeding the accident. Following that, his counsel asked him the amount of his payroll for extra help for the year 1956. This question was promptly and properly resisted by counsel for the defendant as a duplication of expense items which had been already charged in the plaintiff’s profit and loss sheet in arriving at the year’s net earnings. The trial judge, in his charge to the jury, properly removed the $30 per week clerk hire item from the jury’s consideration as an element of separate damage to the plaintiff. The court did not, however, .make a like exclusion of the $18.paid the delivery man for one day of each of the 50 weeks that the business was continued following the plaintiff’s injury. Since the jury is to be presumed to have reflected in its verdict the elements of damage testified to, which the trial judge did not exclude, a deduction of the $18 a week for the period specified from the amount of the verdict will be just.
The plaintiff was also mistakenly permitted to introduce testimony, under a' blanket objection allowed at the defendant’s request, of expenses incurred by him in his unsuccessful attempt to sell his business as a going concern. He ultimately closed it out on March 15, 1957, and sold his inventory through an auctioneer. The net loss testified to by the plaintiff for the months of January, February and up to March 15, 1957, from the operation and liquidation of the business was $450. The trial judge charged that this sum could be taken into consideration by the jury in arriving at the amount of their verdict. This, of course, was error. The loss [342]*342from the liquidation of the business had no relevancy to the plaintiff’s working capacity or earning power. It was clearly inadmissible and should have been excluded by the court. The only reasonable assumption is that the jury computed its verdict on the basis of what the trial judge’s charge permitted and consequently included therein the $450 item of business loss. It is, therefore, only fair and proper that this item also be deducted from the amount of the jury’s verdict. When the verdict has been so adjusted by deducting therefrom both of these noncompensable items of business expense, aggregating $1,350, a just verdict of $27,-800 will be the result for which amount judgment should be entered.
Accordingly, the order granting a new trial is reversed and the record remanded with directions that the verdict in favor of the plaintiff be reduced to $27,-800 and that judgment be entered thereon.