The opinion
Dissenting Opinion by
Mr. Justice Musmanno:
When a litigant wins a verdict which entitles him to be paid in gold, it is not just that he should be paid in copper.
The jury impaneled in this case rendered a verdict in favor of the plaintiff, Robert Eugene Black. By so *371 doing they found that the defendant, Harrison L. Ritchey, was negligent in striking Black down on the highway. They found further that Black did not contribute to the happening of the accident by any act of negligence on his part. Thus, under the law of the Commonwealth Black was entitled to reimbursement for all medical bills incurred and still to be incurred, compensation for loss of past earnings, remuneration for impairment of earning power, and for pain and suffering. The jury returned a verdict of $3500, which, in comparison to the enormous losses suffered and to be suffered by the plaintiff, was like applying a band aid to a severed pumping artery.
Even the Majority Opinion admits that the plaintiff’s injuries were “severe.” They were more than severe. To the plaintiff they were disastrous. He sustained a fractured hip, a 20% impairment in the function of his knee, he has lost acuteness in the sense of hearing, he suffers constant painful headaches, he was in the hospital 43 days, he could not work for 11 weeks, he must wear a knee brace for the rest of his life. His medical bills amounted to $1,834.20, which will be increased by $1,000 for another operation which the doctors recommend. He lost wages in the amount of $932.64. Thus, his out-of-pocket expenses amounted to $2,806.84. This means that he was given only $793.16 for pain and suffering, nothing for impairment of earning power, nothing for the $1,000 bill coming up for another surgical operation.
The verdict is thus obviously inadequate which, traditionally, entitles the plaintiff to a new trial. In Todd v. Bercini, 371 Pa. 605 , this Court said: “If Mrs. Todd was entitled to a verdict from the defendant because of the injuries he inflicted upon her as the result of his negligence, she was entitled to all that the law provides in such a case. And the items of pain, *372 suffering and inconvenience, as well as loss of wages and impairment of earning power, are inevitable concomitants with grave injuries when suffered by a wage earner. A jury may not eliminate pain from wounds when all human experience proves the existence of pain, and it may not withhold lost wages when the evidence in the case uncontradictedly establishes the loss of Avages as the result of the negligence which they, the jury, have adjudicated against the responsible defendant. When it is apparent that a jury by its verdict holds the defendant responsible for a whole loaf of bread, it may not then capriciously cut off a portion of that loaf as it hands it to the plaintiff.”
The late Chief Justice Charles Alvin Jones, in the case of Takac v. Bamford, 370 Pa. 389 , said: “The grant or refusal of a new trial for inadequacy of the verdict is a matter for the sound discretion of the trial court whose action will not be reversed on appeal except for a clear abuse of discretion such as where a new trial is refused when the verdict is so unreasonably low as to present a clear case of injustice.”
The decision of the Majority in this case presents “a clear case of injustice.” The Majority Opinion does not attempt to justify the amount of the verdict. It says that the verdict was a compromise verdict and that a compromise verdict is sustainable when the verdict is “substantial.” Was the verdict here substantial? If one finds a wallet containing $3500 on a lonely country road and cannot ascertain Avho had lost it, the finder, could, with reason and logic, say that he had come into possession of a “substantial sum.” But if, while on that road, he has been run over by a motorist, his knee joint demolished so that this anatomical pivot can no longer function normally, if, from then on he suffers excruciating headaches, his hearing is impaired and he has to undergo further painful sur *373 gery with the insertion of a metallic screw in the bone, he would feel insulted if he were offered $3500 in recompense for his agony and economic loss. And properly so, especially if the motorist had previously offered him $10,000 as happened here before the trial!
But the Majority argues in effect that the plaintiff should be satisfied with what he got because he really shouldn’t receive anything since he was at fault. But who says he was at fault? Not the fact-finders who heard the evidence, saw the witnesses and on their oaths concluded that Black was in no way responsible for the accident.
The facts are that the plaintiff, as he was about to enter his car to drive to his home, noted that the left rear tire was half flat. He calculated he could get to a service station less than a mile away before the tire deflated completely. However, after traveling a short distance, he saw that he had been too optimistic and that the grieving tire had wholly collapsed. He pulled over to the side of the road, as far as he could go, there being snow piled on the banks of the highway. However, he and a witness testified that he was actually completely off the road. His parking lights were on, and he bent over to examine the tire. It was a cold December night, and he straightened up momentarily to warm his hands. While engaged in this self-heating operation, the defendant’s car suddenly was upon him, and he later regained consciousness in a hospital.
The defendant admittedly was speeding at about 45 miles per hour. He had clear visibility ahead of him for 350 feet. He could not have failed to see the plaintiff silhouetted in his headlights and no one contends that he did not. And no one contends that he was not responsible for the accident.
*374 But it is contended that the plaintiff also was at fault. How? A State police officer who investigated the circumstances preceding and surrounding the accident said that the plaintiff could have changed his tire at the time he first got into the car. But what has that got to do with the accident? This is like charging the plaintiff with contributory negligence because he decided to travel by car and not walk since his home was only six miles away.
What happened before arrival at the point of collision was no more relevant to the question of negligence and contributory negligence than what happened when Black first learned to drive.
Even if the plaintiff had used bad judgment in driving with a whining tire, this was not the proximate cause of the accident. The plaintiff felt that the tire was not so flat that he couldn’t get to the gasoline station less than a mile away. The motion picture scenario in this case does not begin until Black stopped his car to fix the tire. If he drove the car completely off the highway, as he and a witness testified, he had reason to believe that no motorist would run into him.
The Majority Opinion says that the police officer testified that when he got to the scene of the collision the plaintiff’s car was partly on the paved portion of the highway. The defendant testified that the plaintiff’s car was one foot on the hard-surfaced highway. But this conflict in testimony was resolved by the jury which found the defendant negligent and the plaintiff nonnegligent.
The Majority Opinion narrates what the defendant testified to, namely, that when the defendant’s car was close to the plaintiff, the plaintiff jumped up in front of the defendant’s car. If the accident actually happened in this manner, this would have been the clearest case of contributory negligence and the defendant *375 would have been entitled to judgment n.o.v., but the trial judge refused n.o.v., explaining: “It is elementary that in passing upon a motion for a judgment n.o.v. that the testimony must be read in the light most favorable to the verdict winner. All conflicts therein must be resolved in his favor and he must be given the benefit of all facts and inferences from facts reasonably deductible from the evidence. With this in mind, we summarily dismiss defendant’s motion for judgment n.o.v.: Ason v. Leonhart, 402 Pa. 312 (1960). If we consider all of the testimony in the light most favorable to the plaintiff, he is entitled to a verdict.”
What caused the jury to fail to award to the plaintiff the full amount to which obviously he was entitled? A reading of the record reveals that there was a woman in the case. Not a real woman, but there was enough of a flutter of skirts to confuse the jury. Clarence Swindell testified that after the accident he found the plaintiff lying on the road. Defendant’s counsel asked him: “Q. Did you see a woman there, by any chance, any woman there that evening? A. Not that I recall, I don’t.”
No one had said anything about a woman up to this point. There was nothing to suggest female influence of any kind. Defendant’s counsel was not satisfied after getting a negative reply from Swindell as to the presence of a woman. He was determined to get sex into the case, as there seems to be a determination to get it into every possible phase of life today. So, when Clifton Foster, who had been a passenger with Swindell, testified, defendant’s counsel swept the femme fatale into the case again. “Q. Did you see any woman there at the scene? A. No, Sir, I didn’t.”
This interrogation, wholly gratuitous, wholly unjustified, suggested to the jury that Robert Black had been engaged in some kind of immorality, that he had *376 not been true to Ms wife. The judge should have struck out this wholly prejudicial questioning and lectured the lawyer for employing improper tactics. Instead, the judge did nothing and, in his opinion denying a new trial, said that the reference to the woman was of no consequence. It is a grave mistake to assume that the mention of a woman in any given circumstance can ever be of no consequence.
In the case of Bedillion v. Frazee, 408 Pa. 281 , we affirmed the granting of a new trial on the basis of an inadequate verdict because defendant’s counsel had intimated, through improper questioning, that the plaintiff might have been on an immoral errand when she was injured. We said: “It is evident from the record, and the lower Court so found, that the inadequate verdict was due to the fact that defendant’s counsel attempted to portray Mrs. Bedillion as a person of loose morals. The jury was led to believe that if on the night of the accident Mrs. Bedillion was bound on a mission which did not appeal to the jury she was not entitled to the damages which might otherwise be due her. Of course, it goes without saying that in a personal injuries case, the jury has no jurisdiction over the morals of the parties except, of course, insofar as they relate to truthfulness and credibility. It wouldn’t matter what Mrs. Bedillion’s intended destination was that night, no one had the right to throw her against a concrete abutment. Even if she were going to a bull fight strictly prohibited by law no motorist could injure her and then be immune from responsibility for his tort.”
Another reason probably contributing to the niggardly verdict was questioning by the trial judge which suggested that a doctor called by the plaintiff was not as competent as he might have been. After Dr. Harry H. Negley, Jr., Huntingdon County Coroner *377 and a medical witness for the plaintiff, had stated his qualifications, the judge asked him the following: “The Court: Are you a member of the American College of Surgeons? The Witness: No, the International College of Surgeons. The Court: The American College of Surgeons is the most respected and qualified in the United States, is it not? The Witness : Not necessarily so, Your Honor, although it is well recognized. The Court : Isn’t it true that most specialists are members of the American College of Surgeons? The Witness: If I might digress a minute, because you have led me afield—Mr. I. Newton Taylor : Just a minute, Doctor.”
Very few jurors would know the relative merits of the American College of Surgeons as against the International College of Surgeons, but the judge’s queries suggested that Dr. Negley was not a very good doctor since he was not a member of the American College of Surgeons. The judge later instructed the jury to disregard his references to the two surgeon associations but by this time the horse was out of the barn and the bear was out of the tree. By this time it can be doubted if any member of that jury would have wanted Dr. Negley to operate on a stray caterwauling cat.
The trial judge allowed two wholly extraneous factors to enter into the case to distract the jury enough to allow them to believe that it was within their authority to reduce, as a matter of punitive determination, the amount of the verdict the plaintiff’s injuries entitled him to. Obviously, this kind of a determination is contrary to the most elementary appreciation of a jury’s duties and responsibilities. It is my view that law, justice and elementary fair play dictate a new trial in this case, without reference to phantom roadside women, stray cats and comparative negligence which does not exist in Pennsylvania law.