On appeal from the Supreme Court.
For the appellant, McCarter & English (John F. Ryan, of counsel).
For the respondent, Francis A. Gordon.
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the defendant below from a judgment entered upon a verdict for the plaintiffs in an action tried at the Union Circuit before Judge Thompson, to whom it had been referred. At the trial there was evidence to the effect that on May 29th, 1929, the plaintiff Martha Weh, the wife of the other plaintiff, was seriously and permanently injured as the result of a collision between the motor bus of the defendant, negligently operated by its servant, and a Ford sedan in which she was riding.
We now deal with the only questions argued.
We think that the trial court did not err in refusing to grant defendant's motion to strike out the testimony of Dr. Christopher C. Beling with regard to intercranial injury on the ground that there was nothing with reference thereto set forth in the plaintiff's bill of particulars.
It is contended on the one side, and denied on the other, that the question is not raised in the record in a manner justifying us in dealing with it; but we incline to think and assume that it is, and now proceed to consider it.
We think that the trial judge was right.
He pointed out, and we point out in passing, that the complaint averred that, through the defendant's negligence, the plaintiff Mrs. Weh was severely injured, cut and bruised about the head "and more particularly, suffered a concussion of the brain" and "nervous shock."
Now in the bill of particulars, in answer to the question "did you sustain any permanent injury?" the plaintiff answered, "nervousness and heart trouble, resulting from shock and concussion of the brain * * *."
The plaintiff at the trial, after proving, among other things, the severe blow and cut on the head which Mrs. Weh received in the collision, followed by shock and severe nerve and heart disturbance, proceeded to examine Dr. Beling who had qualified as an expert and who had made a complete neurological and physical examination of her. In answer to a ...