Frysinger v. Philadelphia Rapid Transit Co.
Frysinger v. Philadelphia Rapid Transit Co.
Opinion of the Court
Opinion by
This was an action of trespass brought by Edward J.
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 ap
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
The fourth, sixth and eleventh assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.
Reference
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- Negligence—Street railways—Evidence — Medical testimony — Weight—Damages—Items of damage—Loss of earning power—Erroneous charge. 1. Where in an action for personal injuries two physicians stated that plaintiff was suffering from neuritis, as a result of her injuries, one of whom stated that it was not likely that she would ever he entirely cured, hut five physicians, including plaintiff’s regular medical attendant testified that she did not have neuritis and was not permanently injured, a statement of the trial judge in his charge to the jury that “as in eases of this kind a great deal of medical testimony has been produced, and as usual about equally divided,” was not only inaccurate but tended to minimize the force of the medical testimony, and may have led the jury to disregard it, and was ground for reversal. 2. Where in such case it appeared that two or three years previous to the accident plaintiff’s occupation was that of professional pianist hut that she had apparently abandoned such occupation, reversible error was committed in permitting the jury to take into consideration in their estimate of the damages, plaintiff’s alleged loss of earning power, based on her earnings at the time when she was actually engaged as a professional musician, in the absence of evidence that plaintiff had intended to resume her profession, or that any such intention was thwarted as a result of the accident and in the absence of medical testimony to show that plaintiff’s earning power was lessened by the accident.