Wallace v. Pennsylvania Railroad

71 A. 1086, 222 Pa. 556, 1909 Pa. LEXIS 909

Opinion

Opinion by

Mr. Justice Stewart,

The evidence fully warrants the conclusion reached by the jury in this case that the injuries sustained by the plaintiff were severe to an unusual degree. Whether they all were legally chargeable to defendant’s negligence is a matter to be considered later on. Under the instructions of the court the jury were allowed, in determining the plaintiff’s damages, to take into consideration the pain and suffering he would probably in the future endure, as a sequence of his injuries, as well as that he had already suffered. This instruction is complained of as introducing an element of damage too remote and speculative to form a basis of legal recovery, and it is the subject of the first assignment of error. Nothing is better settled than that in cases of personal injury pain and suffering are to be reckoned as distinct elements for which compensation is to be allowed. It is equally well settled that this rule admits of compensation for future as well as past pain and suffering. With what degree of certainty must it be made to appear that the future pain and suffering will ensue before compensation for them can be allowed? That is the question raised by the assignment; and it might well call for consideration if no rule existed with respect to it, or the rule were of questionable authority. But neither is the case. In the multitude of cases of like character which have come before this court for review, one unvarying rule has been observed regarding the quantum of proof required, and it is this — the jury may and should award compensation for future pain and suffering whenever the evidence furnishes just ground for the belief that such pain and suffering will likely or probably ensue. This standard has met with the approval and sanction of this court in every case, and that without qualification. It is sufficient to refer to the cases of Schneider v. Penna. Co., 2 Cent. Repr. 74; McLaughlin v. City of Corry, 77 Pa. 109; Scott Township v. Montgomery, 95 Pa. 444; Lake Shore, etc., Railway Co. v. Frantz, 127 Pa. 297; Smedley v. Railway Co., 184 Pa. 620. Many others as distinctly recognizing and enforcing the rule could be cited were it necessary. In the case of Scott Township v. Montgomery, 95 Pa. 444, an instruction to the effect that the “jury shall allow for pain and suffering, the plaintiff had already endured, bodily and mentally, and which he is likely to ex perience” was assigned for error. This court held in a per curiam that the measure of damages was correctly stated. In Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297, the trial judge in his charge had allowed the jury to consider the pain and suffering “the plaintiff has. undergone and may undergo in the future.” This was specifically assigned as error. This court, while disapproving of the expression “may undergo,” affirmed the judgment on the ground that in the connection in which it was used it could not have been misleading to the jury, in view of the subsequent instruction that recovery was to be limited to “that already experienced and likely yet to be experienced.” With such explicit and repeated recognition by our own courts of a rule which admits compensation for pain and suffering likely to ensue, it comes to nothing to show that in some jurisdictions recovery for these is allowed only when it is made to appear that they are reasonably certain to result. We are not called upon to vindicate the justice or reasonableness of the rule which obtains with us; it is only necessary to assert it and express our continued adherence to it. All that is required with us is, that there be sufficient evidence from which the jury may fairly derive the conclusion that the chances that the plaintiff will endure future pain and suffering preponderate over those that he will not. Such preponderance denotes probability or likelihood, and that is sufficient.

The plaintiff, while a passenger, was injured in a collision between two of defendant’s trains, sustaining a fracture of both bones of his left limb between the knee and ankle. This occurred September 7, 1905. He was at once removed to a city hospital where he was placed in charge of a physician' and surgeon in the employ of the defendant company, who proceeded without delay to place the injured limb in alignment and apply splints. The plaintiff remained in the hospital under treatment for nearly a month when, being able to go about on crutches, he was taken to his home. About the middle of November following, the same surgeon removed the plaster cast and directed moderate use of the limb. Plaintiff testified that after the removal of the cast he suffered pain in his limb so severe that he was scarcely able to endure it. It is not al leged that this pain resulted from any undue or immoderate use of the limb. Because of its continued severity plaintiff procured radiographs to be taken of the injured part, and in view of what these were supposed to disclose, he employed Doctor Swope, a surgeon of repute residing and practicing in the city of Pittsburg. From an examination of the radio-graphs and the patient, Doctor Swope concluded that what caused the pain was an overriding of the fibula to the extent of three-fourths of an inch, and that an operation was necessary to make the small bones unite squarely, and thus relieve the pressure upon the vessels and nerves of the foot resulting from the overriding. The operation involved not only an incision, but a severance of the bones which had partially united, the removal of the oblique ends, and the bringing them into a more perfect apposition and securing them in proper place by artificial tendons. This operation was performed by Doctor Swope with the assistance of another surgeon, and in the presence of several, at the same hospital where the patient was first treated. Doctor Swope testified that he found the conditions to be just as the radiographs represented them, and in addition he found the tissues about the place of fracture devitalized, the blood supply having been interfered with by the pressure of the bone. Several months later another operation was required for the removal of a piece of dead bone which resulted from the devitalized tissues. At that time it was observed that the tissues were doing no good, not healing, not throwing off the broken-down processes. Doctor Swope gave it as his conclusion from a very recent examination of the patient, that there had been but little improvement in his condition; that necrosis was still going on, and that another operation would be required for the removal of dead bone. The effort on part of the defendant was to show that the operation performed by Doctor Swope was wholly unnecessary; that plaintiff’s limb was in good condition at the time the operation was performed, and that the healing processes were steadily going forward; that if there was any overriding of the bone it was so slight as to be of no consequence, nothing beyond what is ordinarily looked for in such cases, and the necrosis which subsequently set in, and is the admitted cause of plaintiff’s present disability and suffering, is due wholly to the operation performed by Doctor Swope. This view of the case was expressed by Doctor Wilson, the surgeon who first treated the plaintiff, and he was fully supported in it by several others called by the defendant. Into this controversy we need not enter. Every point submitted by the defendant which bore relation to it was affirmed by the court with a single exception. Defendant’s fourth point was as follows: “If the jury find that the operation of Doctor Swope caused the dead bone, and that this dead bone was not a sequence or result of the original, injury, they should not take this dead bone into account in making up their verdict.” In refusing this point the learned trial judge said: “While it is true the plaintiff cannot recover for injuries which were not the sequence of the original injury received in the accident, yet if he exercised care, caution and good judgment in the selection of a skillful and competent surgeon, he has discharged his duty in this respect, and is not responsible for an error in judgment or unskillful treatment on the part of the surgeon who has been selected with care. Where a person has used reasonable care in selecting a physician or surgeon, but owing to the unskillful treatment the injury has been increased, the party causing the injury will be held liable for the latter.” Putting it somewhat differently, the point was refused because it did not comprehend sufficient matters of fact to justify the conclusion sought to be drawn; and this was clearly right. If the operation was performed in good faith, before the recovery of the plaintiff from the original injury, with a view to promote and insure complete recovery or mitigate plaintiff’s pain, either by correcting what had been done' or by supplementing it, by the surgeon in whose skill and judgment the ordinarily prudent person would have a right to rely, the consequences following the operation and resulting directly therefrom are in a legal sense the sequence and result of the original accident. The affirmance of the point would have involved an assumption that there was no evidence from which the jury could find such conditions as those we have indicated, and which, once established, would legally refer the consequence to the accident as the proximate cause. Instead of this being the state of the evidence, there was not only-abundant testimony- in support of every contention we have above referred to, but there was no attempt whatever on the part of the defendant to controvert it. This testimony, if accredited, established not only a connection between the pain and suffering caused by the presence of the dead bone and the original accident, sufficient in law to make the accident the proximate cause, but it linked the two together in' such a way as to make a natural whole. Any consideration of this matter must start with the fact that before the fractured parts had healed, while the process was going on, and after plaintiff had been virtually released from the surgeon’s care and supervision, he was subjected to intense pain and suffering in the region of the fracture. If such were not the fact, or if it resulted from something else than the original injury, defendant should have made some effort to controvert the testimony with respect to it. It is enough in this connection to know that the testimony was undisputed. The natural connection between the pain, if it existed, and the original accident, is too obvious to call for remark. It was just as natural that the plaintiff, in his desire to be released from the pain to which he was subjected, should have recourse to surgical skill and submit to whatever treatment such skill should determine upon. The suffering which followed the treatment, whether that treatment was wise or unwise, is as directly and naturally traceable to the original accident as that which attended the setting of the fractured limb in the first place; both were parts of the connected whole, and of course it is of no consequence that one is further from the beginning of the chain of events than the other. What we have here said applies as well to the fourth assignment, which is the answer of the court to the defendant’s fifth point, which asked the court to say, “that defendant is not liable for damages arising from the fault, mistake or negligence of plaintiff’s surgeon which produced injury and loss to plaintiff that could under no circumstances have resulted from the injury plaintiff received in the collision.” The court affirmed the point, and followed the affirmance with a quali fication or explanation which set out the same considerations which led to a refusal of the fourth point. It is the qualification that is assigned for error. Like the point itself 'it assumes a case where the injury under no circumstances could have resulted from the original accident, and acquits from liability the party causing the accident. It goes on to say, however, that though injury was caused by unskillful treatment, yet, if the plaintiff exercised ordinary care in the selection of the surgeon, the defendant, if liable legally for the original injury, would be liable for the increased injury as well. The point submitted should have been refused for reasons which we have stated in considering the former point; the explanation left the affirmance without advantage to the defendant, but so far as it went it was a correct statement of the law under the facts of the case.

It was entirely proper to allow the witness, Doctor Swope, to state the grounds on which he based his conclusion as to what caused the pain from which the plaintiff suffered, and prevailed with him in determining that an operation was necessary. His conclusions were based largely upon what the radiographs revealed. This circumstance made the radiographs admissible. While, as we have stated, it was not a material inquiry in the case whether the operation was a prejudicial one or not, if made in good faith by one on whose skill the plaintiff had a right to rely, yet it was around this question that the controversy was waged, the defendant insisting that no excuse whatever existed for the operation. Under such circumstances it would have been most unjust to the witness to refuse him permission to show by the radiograph what directed his judgment. He testified that when operating he found the conditions to be just as the pictures represented. In view of this testimony the objection that they were not taken by a professional comes to nothing. The sixth assignment of error for the reasons given cannot be sustained. The remaining assignment complains of the inadequacy of the charge in that it does not sufficiently call the attention of the jury to the evidence on the part of the defendant as to plaintiff’s ability to make use of the injured limb, — this in connection with the question of compensation. This assignment is without merit. The charge is not only a full and adequate presentation of the evidence, but strictly impartial.

The judgment is affirmed.