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:I DEPONENT
3 Norman Hutchison
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13 NO. DESCRIPTION
14 (None. )
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I N D E X
EXAMINATION
By Mr. McKnight
PAGE
3
EXHIBIT~
()
PAGE
:--.J
C.P.C.R.S.
(111)258-3651 or (800)863-3651
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MR. McKNIGHTI Since it will be difficult to
2 have some of the things like reading and verifying the
3 deposition done before tomorrow.
4 BY MR. McKNIGHTt
o
5
6 please?
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Q
Would you state your full name for the reco~d,
A
Norman Edward Hutchison.
Q
And what is your addreas, Mr. Hutchison?
A
21 Station Road, Newville.
Q
What township is that located in?
A
Penn Township.
Q
Do YOll reside there with anyone else?
A
My wife and daughter.
Q
Her name?
A
Constance M.
Q
How long have you resided at that property?
A
About nine years.
Q
What do you do for a living, Mr. Hutchison?
A
I'm an assembler at Little Tykes in
20 Shippensburg.
21 Q What is Little Tykes?
22 A They make kids' toys, plastic toys.
23 Q How long have you worked for them?
24 A Two years. This is -- september 13 will be two
25 years.
J
C.P.C.R.S.
(717)258-3657 or (800)863-3657
8
f1
1 is, there was something on the back of your pickup truck.
2 Is that correct?
3 A No, I didn't have no cap on the back of the
4 truck. I don.t have a cap, nover had one.
5 0 So it's just a pickup truck?
6 A Yeah.
7 0 And this pickup truck has two side mirrors and
8 a rearview mirror, Is that correct?
()
9 A Yes, it does.
10 0 Now, as you were preparing to leave, you backed
11 up. Is that correct?
12 A Yes, I did.
13 0 Before you backed up, you looked in your side
14 mirror, that is on your left-hand side. Is that correct?
15
A
No, I looked in my rearview mirror first, then
16 I looked in my right-hand mirror, and I was backing up.
17 Just as I was backing up at the light, the traffic had
18 changed and there was a tractor trailer right at the light
19 and he started pulling out. So when I was backing up, I
20 was backing up slow so I wouldn't
I was watching in the
21 mirror so I wouldn't put the back end out towards the
22 traffic.
23
o
So, if I underetand what you've just told me,
24 you say ~irst you checked your rearview mirror?
,_./
25
A
Um-hum.
C.P.C.R.S.
(717)258-3657 or (800)863-3657
f'"".
,
12
1
MS, COATES I Plaintiff,
MR. McKNIGHTI To the plaintiff, Mrs. Neal.
2
3
THE DEPONENTI I might have, but I don't
4 remember.
5 BY MR. McKNIGHTI
6
Okay. Was there anyone else there that you
o
7 spoke to?
8
No, I just spoke to her. She went inside the
A
9 store that's there. There is a clothing store, something
10 there. She went inside there and got a pencil and paper
11 off her to get my name and insurance company and that
12 stuff .
') 13
.....,
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o Did you leave then after you gave her that
information?
A Yeah.
o Did you have anything more to say to her at
that point?
A No. I just gave her that there. She started
19 walking. I got in the truck. She started walking away
20 and I went home.
21 0 Were you later contacted by a police officer?
22 A Yes, I was.
23 0 And you gave him a statement or information
24 about what happened?
25 A Yeah.
C.P.C.R.S.
(717)258-3657 or (800)863-3657
~
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1
o
When did you go out and measure these areas,
2 measuring your truck and the distance of the yellow line?
3 A Last week or the week before last, something
4 liko that. Two weeks ago.
!5 0 Did you do that at the request of anyone?
6 A My lawyer.
7 0 Your lawyer asked that you measured these
8 things?
9 A Well, I told her I was going to and she said
10 that would be fine,
11
o
Might as well have somebody who knows what the
12 distance is,
"')
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All right, those are all the questions I have.
MS. COATES: I don't have anything.
(Whereupon, the deposition was concluded at
11:15 a.m.)
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25
,...,)
C.P.C.R.S.
(717)258-3657 or (800)863-3657
16
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10 l!l AH '95
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WHBREFORE, Your Petitioner prays your Honorable Court to
appoint three (3) arbitrators to whom the case shall be submitted,
Respectfully submitted,
Karen S. Coates, re
Attorney 1.0. #52654
Attorneys for Defendant
305 North Front Street
P. O. Box 999
Harrisburg, PA 17108-0093
(717) 237-7121
Datel
, 1994
PRAECIPE FOR LISTING CASE t"OR TRIAL
(MUll De I}'pcwrlncn Inu IUDmlllC1J In uupllcltt'
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Plelle IIll the (ullllwl", 'lie:
Chc,k 0":
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for JUIlY lnal II Ih, n..lllnn 0' uld ,oun,
:)
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_.__.._.._._._____._.___.__.......n....................................u............................................................................. I
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'0' 'nal wlllloUI a Jury
CAPTION OF CASE
(rnO.. "pIlon mUll be '''lid In rull)
ICh"k On,)
( ) A"ump,h
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VELMA A, NEAL,
( X) Trup.1I <Motor Vehicle)
( )
lomor)
VI, (PlalnOff)
",
(D,',ndanl)
The trial list will be. called on
June 11a 1996 and
Trials commence on July 8a 1996
Pretrials will be held onJune 19a 1996
(Briefs are due 5 days before pre-
trials. )
(The party listing this case for trial
shall provide forthwith a copy of the
praecipe to all counsel, pursuant to
Local Rule 214-1.)
NOIlMAN HUTCHISON
VI,
No, 94-4\ ".I'l94
Indicale lhe attorney who wllllry case for the party who OIes this praecipe: Karen S. Coates.
Esauire. Thomas. Thomas & Hafer. P. O. Box 999. Harrisbura. PA
17108-0999
Indicate trial counsel for other parties if known: Marcus A. McKniaht.
Esa.. Irwin. McKniaht & Huahes. 60 West Pomfr~t St.. Carlisle. PA
17013-3222
This case is ready for trial.
.~
Signed:
[)ale: ,.
r>f /(
Print name: Karen S. Coates. Esauire
Morney for: Defendant Hutchison
7. Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief aa to
the truth of the averment and proof is demanded.
8.
Denied.
The averments of Paragraph 8 constitute
legal conclusions to which no response is required.
By way of
further answer/ however, it is specifically denied that Defendant
was ne91igent in any manner whatsoever. It is further denied that
any conduct on the part of the Defendant resulted in the injuries
allegedly sustained by the Plaintiff. Moreover, it is specifically
denied that:
(a) Defendant failed to look behind his motor
vehicle as he backed out of his parking place in order to
determine if any pedestrians were in the area of the
cross walk and proof is demanded;
(b) Defendant failed to use due care in the
operation of his motor vehicle and proof is demanded;
(c) Defendant failed to keep his motor vehicle
under proper control and proof is demanded;
(d) Defendant failed to use his side and rear view
mirrors in order to determine whether the Plaintiff was
behind his truck and proof is demanded; and
(e) Defendant continued to back into the leg of the
Plaintiff even as she yelled and pounded on the rear of
his truck and proof is demanded. Furthermore, it is
specifically denied that Defendant failed to pay proper
attention behind him even after he struck the Plaintiff
and proof is demanded.
9.
Denied.
The averments of Paragraph 9 constitute
le9al conclusions to which no response is required.
By way of
further answer/ however, the averments of Paragraph 9 are
specifically denied since after reasonable investigation, Defendant
- 2 -
is without knowledge or information sufficient to form a belief as
to the truth and proof is demanded.
liD IlATTBR
10. Paragraphs 1 through 9 of Defendant's Answer to the
complaint are incorporated herein by reference.
11. Plaintiff assumed the risk of injury.
12. The damages and/or injuries sustained by the
Plaintiff are the result of the negligence of Plaintiff Velma Neal
which serves to reduce or bar any recovery to which Plaintiff may
be entitled pursuant to the Pennsylvania comparative Negligence
Act, 42 Pa. C.S. 57102.
13. Any recovery to which Plaintiff may be entitled is
limited by provisions of the Pennsylvania Motor Vehicle Financial
Respondbility Law, including, but not limited to, 75 Pa. C.S.
51705 and 51722.
14. It is believed and therefore averred that Plaintiff
Velma Neal selected or was otherwise bound by a limited tort option
under the automobile insurance policy applicable to this accident
and said option was in effect on the date of the accident.
15. By virtue of the applicability of a limited tort
option, Plaintiff is hereby precluded from recovering any amounts
for non-economic damages which may be the result of the inoident
referred to in Plaintiff's Complaint.
- 3 -
4,
As the plaintiff left said shop, she walked up the sidewalk to the intersection of West
Pomftet Street and South Hanover Street. She then attempted to cross South Hanover Street at
the edge of the crosswalk when a truck owned and operated by the defendant, Norman
Hutchison, backed into the plaintiff as she was waiting for the light to change,
5,
At the time of the accident the plaintiff was standing just inside the crosswalk when the
rear of the defendant's truck struck her on the left leg catching her left leg underneath the rear
bumper of his 1972 Chevrolet pick-up truck.
6,
As a result of the actions taken by the defendant, Norman Hutchison, the plaintiff
sustained severe injury to her left leg requiring treatment at the Carlisle Hospital as well as follow-
up treatment with her physician and physical therapy sessions to rehabilitate her leg,
7.
The plaintiff sustained a severely bruised left leg with blood clots which caused the
plaintiff's ability to walk to be impaired for approximately eight (8) weeks,
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W. WITNESSES,
1. Velma Neal;
2. The defendant Nonnan Hutchison as if on cross examination; and
3. Rodney K. Hough, M,D,
V. EXHffiITS:
1. Copies of the medical records;
2, Photographs of the injury sustained by the plaintiff,
3, A diagram of the accident scene; and
4. The plaintiff will object to the entry of the police report into evidence,
VI. SJ:TILEMENT STATUS: The plaintiff demanded $7,500,00 but has offered to settle
for 52,500,00 if the case can be resolved at or prior to the Pre-Trial Conference,
IRWIN, McKNIGHT & HUGHES
By:
. Esquire
Attorney for the plaintiff,
Velma A. Neal
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THOMAS, THOMAS" HAfll
BV: Kllrl'n 5, CU"le~, hquln~
I,D, Nn,; 52654
305 Nunh hunt SIrI!'L'1
P,O, Bn' 999
tt.rr!,burR, 17 lOll-<J999
VILMA A. NlAL, I IN THI COURT OP COMMON PLIAS OP
I CUMBIRLAND COUNTY, PENNSYLVANIA
PLAINTIPP, I
I NO. 94-4115 1994
v. I CIVIL ACTION
I
NORMAN HUTCHISON, I
I
DEPBNDANT. I JURY TRIAL DBMANDED
PRETRIAL MEMORANDUM OF DEFENDANT. NO~ HUTCHISON
STATBMENT OP PACTS
This case involves an inci.dent occurring at or near the
intersection of Pomfret and Hanover Streets on October 14, 1992.
On that date, the Plaintiff, Velma Neal, was attempting to cross
South Hanover Street to get to her vehicle.
At the same time,
Defendant, Norman Hutchison, was slowly backing his vehicle out of
a parking space.
After the Plaintiff stepped off the curb, the
Defendant's vehicle brushed against her left calf.
LIABILITY
This case was p~eviously tried before a panel of arbitrators
on J~ne 1, 1995, who found in favor of the Defendant.
Plaintiff
filed an appeal from the arbitrators' decision. It is Defendant's
position that the Plaintiff failed to exercise reasonable care for
her own safety. Plaintiff failed to observe the Defendant's
vehicle at any time prior to the incident. Plaintiff failed to
cross in the crosswalk area, and instead, stepped off the curb
immediately to the rear of Defendant's vehicle.
plaintiff contends that Defendant was negligent per se for
violating 75 Pa.C.S. ~3702(a) relating to limitations on backing.
DAMAGES
Plaintiff was treated and released at the Carlisle Hospital on
October 14, 1992. She saw her family physician in follow up and
received some physical therapy. All of her medical bUls have been
paid and she did not sustain any wage loss. The bruise to
Plaintiff's left calf was completely resolved by March, 1993 and
Plaintiff does not contend that she suffers any residual disability
associated with the incident.
WITNESSES
Velma Neal as on cross examination, Norman Hutchison, and
Officer McKinney of the Carlisle Police Department.
EXHIBITS
Defendant intends to of fer photographs depicting the
intersection of South Hanover and West Pomfret Streets, as well as
a diagram depicting the location of Defendant's vehicle at the time
of the alleged impact.
In addition, Defendant will offer the Police Report prepared
by Officer McKinney.
- 2 -
..
22
"LIlA A. NIAL, IN THI COURT or COMMON PLIAS or
Plaintiff CUMBIRLAND COUNTY, PINNSYLVANIA
v. 94-4115 CIVIL TIRN
NORMAN HUTCHISON, CIVIL ACTION - LAW
Defendant JURY TRIAL DIMANDID
IN REI PRETRIAL CONPIRIN~
At a pretrial conference held Wedne.day, June 19,
1996, before the Honorable George I. Hoffer, in thi. motor
vehicle ca.e, Marcu. A. McKnight, III, I.quire, repre.ented the
Plaintiff, and Xaren S. Coate., laquire, repreaented the
Defendant.
Plaintiff wa. a pede.trian on the date of the
incident, Defendant had hi. car parked in the fir.t parking
.tall of the .econd block of South Hanover Street, facing .outh
and to the right-hand aide. Defendant wa. attempting to leave
hi. parking .pace to enter traffic and had to back hi. car in
order to clear a parked vehicle in front of him. A. Defendant
attempted to do thi., Plaintiff attempted to croaa the .treet
and wa. .truck by the backing vehicle, and fell under the
vehicle, cau.ing a large brui.e on her leg. Except for the
brui.e, there were no re.idual injurie., and Plaintiff i. .uing
for her pain and .uffering. The Defen.e i. contributory
negligence, and the allegation i. that Plaintiff did not att..pt
to cro.. in.ide the croaawalk where ahe would have been .afe.
The ca.. i. ready for trial and may eaaily be tried in one day,
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PLAINTIFF'S PROPOSED POINT FOR CHARGE
NUMBER -3-
~
Ordinary care is the care a reasonably careful person would use under the circumstances
presented in this case. It is the duty of every person to use ordinary care not only for his own
safety and the protection of his property, but also to avoid injury to others. What constitutes
ordinary care varies according to the particular circumstances and conditions existing then and
there. The amount of care required by the law must be in keeping with the degree of danger
involved.
See Pa. SSJI (Civ) 3.02.
4
. .
PLAINTIFF'S POINT FOR CHARGE
NUMBER -7.
~
The number of witnesses offered by one side or the other does not, In itself, determine the
weight of the evidence. It is a factor, but only one of many factors which you should consider.
Whether the witnesses appear to be biased or unbiased; whether they are interested or
disinterested persons, are among the important factors which go to the reliability of thllir
testimony. The important thing is the quality of the testimony of each witness. In short, the test
is not which side brings the greater number of witnesses, and which evidence, you consider most
worthy of belief. Even the testimony of one witness may out weight that of many, if you have
reason to believe his testimony in preference to theirs. Obviously, however, where the testimony
of the witnesses appear to you to be of the same quality, the weight of numbers assumes
particular significance.
See Pa. SSJI (Civ) sm.
8
PLAINTIFF'S POINT FOR CHARGE
NUMBER -9-
~
If you find that the defendant is liable to the plaintiff, you must then find an amount of
money damages which you believe will fairly and adequately compensate the plaintiff for all the
physical and financial injury she has sustained as a result of the accident. The amount which you
award today must compensate the plaintiff completely for damage sustained in the past.
See Pa. SSJI (Civ) 6.00.
10
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crosswalk. The facts of the KnCf.kv case indicate that the plaintiffs had entered the street
outside the confines of a crosswalk by walking between two parked vehicles. As the plaintlJfs in
KnCf.kv proceeded to cross the street, they were struck and injured by a moving vehicle. In
delivering the opinion for the court, Justice Bell announced that
[p ]Iaintiffs were not guilty of contributory negligence merely because they
attempted to cross a street between intersections...; and we caMot say that
plaintiffs' failure to look before they took a step forward was... sufficient to
make them guilty of contributory negligence as a matter of law."
Karcf.kv v. LHrla, 114 A,2d ISO at IS3 (19SS). Applying this law to the instant case, it
becomes clear that the action of Velma A. Neal was not negligence per se. Mrs. Neal was in a
safer position than the plaintiff in Karcfskv. because Mrs, Neal was only a short distance from
the marked crosswalk and was well within the area of the painted yellow curb. Mrs. Neal was not
in the action of crossing Hanover Street at the time she was injured. She was not in a lane of
moving traffic, nor was she walking between parked vehicles, She was standing just off the
sidewalk in a no parking zone waiting for the traffic signal to change in her favor. Quite simply,
Mrs. Neal was in an area where a reasonable person would not expect to be confronted by
moving vehicles in their path. Nevertheless, Mrs. Neal was struck by a vehicle moving in reverse,
and was injured as a result.
Although the above-referenced caselaw clearly removes the banner of negligence per se
from such situations, there is accompanying case law which applies a greater duty of care upon
pedestrians who cross a street outside the designated crosswalk. Specifically, the case of
Shuman v. Nolfi articulates this duty by saying that where a pedestrian crosses a street or
intersection without the benefit of a crosswalk, then that shall be obligated to use a higher
standard of care than would be applied to a pedestrian crossing within a designated crosswalk.
1S9 A.2d 716 at718 (Pa 1960). Such caselaw goes even further by pointing out that a pedestrian
must "not only look before starting to cross the street but must continue to look as he proceeds
2
across." IlL. However, the present case is easily reconciled to the above-referenced caselaw given
that in the instant case Mrs. Neal was ill the process ellercising her lIuty of care by looking for
oncoming traffic. Furthermore, Mrs. Neal WitS not in the process of crossing the street, but was
instead standing on the street's edge waiting for the tratlic signal to change so that she might then
cross. Clearly Mrs. Neal's actions demonstrate that she took precautions which were above and
beyond those which a pedestrian crossing within a crosswalk would be ellpected to take. In this
relpect, then, Mrs. Neal's actions easily satisiY the heightened duty of care imposed by Shuman
and its caselaw progeny.
Yet perhaps the most applicable piece of caselaw is the 1990 Superior court case of
Bressler v. Dannon YOllurt, In Bressler. the plaintiff was standing behind a van which was
parked along a public street. While the plaintiff was waiting to cross the street the operator of the
van began to move the van in reverse, subsequently striking the plaintiff and causing injury to him.
The large issue on appeal in Bressler dealt with the propriety of the jury instructions at the trial
court level. However, the content of those jury instructions is directly at issue in the instant case.
The focal point of the jury instructions in Bressler addressed the confusion of the jury at
the trial level over the question of whether a pedestrian is negligent per se by crossing a street
while not in a crosswalk. The Court answered that question by emphatically stating that "both the
Supreme and Superior Courts... have repeatedly held that the mere fact that a plaintiff crossed
between intersections is insutlicientto establish negligence on the part of the plaintiff." Bressler
v. Dannon YOllurt, S73 A,2d S62 at S66 (Pa, Super 1990), The court went on to say that the
jury instruction should have included language which conveyed the concept that a pedestrian may
cross between intersections when ellercising due care, lsI. at S67, It is the "due care" language in
Bressler that is ccntralto the issue of comparative negligence. Furthermore, the question of "due
care" in the context of a pedestrian crossing a street outside of the marked crosswalk is left for
determination by the fact finder in each individual case,
3
~ 3701
OI'EHATION OF VI<.:mCU~S
;5 Pa.C.S,A.
8. - Sufficiency 0' evidence
"'here mllltJt, hourlllrl/oC l'll'ctrl~ tru(.'k
aCt"", Ilth'l'I' tlllll t'Btl'tl'.] ,.torl'. jump....l
or tell thul'trUItI Wlll'lI trul'k. with
hrnkl> ~...l, tolUl'll'd rOI'\\'IIhl \lUdl'I' (IOWl'!'
or mutl,lt, llvhh'III'I' \\'Il/ol IfltHlfrll..'ll'lIt (I)
tllk~ l'lll"l' to JUI')', HIIH't1vlch \, Purk.
WU)" lIukhlR' l'll" IG:.! A. (Ilil, 1117 PU.~lI.
I'"". .~3. ln3.
l':vhlcn('t" ltUppOtll'r1 verlll!..'t fur plain.
tiff, injurell wtU,"1 ullnttt't1d('~1 l'lt!ctrh-:
truck Ml.Lrlt'd o\'~r CUI'II ollto ~hh'wlllk.
1>01) v. J. H. 1\.'1111'\ :--:l.Hll!l. (II) l'u,Su,Jer.
IO~. 1027.
Jo:\'htenct.! ~U!!lt(lIII{'ll \'ctllict fur lJlnlu-
UH. In action fur dIlIJHlJ,l'l't'l tll pI'OlH!rt)'
from nUlomolJlIt' l.lut or ('onll'ol. Ob"'II'
Bucr v. HUllltH', ~~ Pn,Sup...... :!I}.I, 19~tj,.
7. Jury quuUon.
l1nd~!I' e\'hlencl.' thot Ildl'ljtlnut
l:UOJllJl.!d hi" tlutol1whlll.! UII Hlt'l'P "tillIe,
liet emergellcy lJrnkt.', ~h\lt 0(( lJ.;'nttlon,
left ke)' In 19n1tloll, (nil€d to turn
wh(>('ltI into ('urb or h(~hwuy Il~ rf.'qulrl'd
h)' tlltH st!clhm, l€ft 12 nnd IS-year-old
11,u~HeIlKt.'n In the lllltoflllltJlIl.' while d~-
rendulIl :llld plalnllrr Jln~:-en"'H !lot out
d the ,..ehide Brill wulk<'l) tldllnd it,
wlH'lhL'r .ll'h'rICtllnt WIHI JlI'Klhr(lJlt In
11.'n\'lll~ hili \'('hlde unuttfllllett wlth key
ill 1~lIltJotl 111111 lwn )'outhful JHUI't~tll(lr.
th.'reln, ".nil wlll..'thp'1" ('otlduct ut one or
tllll""! Jmf'lf(t'n~I'rM, wh" WUtl ulh.IKfldly
hUIIIIIIIIJ.;' wllt'l'l lUll I en'lll!: to turn on
rntllu wlu..'u \'I.'Ilh.-I,' rllllt'l! hllCkwo.rcJ.
witll It" l'l1lo:llIl.' rUIIIllIl,.;- fU111 struck
Illullltlt'f, I'4ho\llll hn\'l' hl'I'1I h)retllllUI hy
dd('lHlltllt Wl'I,' 11'l'\h-'tIo fo.r jUf';\', r>t:..
,'Iullll' \" 1I1'1I11lllrt, 303 '\.~,I fJIll.i, 22~ 1'0.,
:-:lIlll'r, :HI. H113,
\\'llt.t1u.'t lIIulOl'lst Whll pnl'kl'tl uuto-
!Hublll' III pri\'ut.... t11'1\'ewl\)' WtUS negl1..
,Kl'1Il wh'.'lI nutuUlolJilt', whUt! unoccu..
plt'l), eonl"ted "UWIl ~Iopl' ilJ (~el to an..
uHU'r t1rl\'f'wll)' anti lllJlIr~d lJl.))' on hll')'_
l'Il', wu~ lor Jury, HI('kl'I'l"un \', Uru..
klllll, hI!} ...\, 71l~, 313 Pu, 379, 1931.
In p(lrr:lOJIOI Injur~' f)('thm, whethf."r un..
nttct1tl('cl ell'<'ll'le UtldL whi<'h startf'd
011 sllR'ht jIll', WUft It.'ft with l'ower orr
fUllI hmke/'l til't. wos 'or jun', Uon v, J,
S, Ivlm~ ~ont!, 90 Pa,Super, 106, 1921,
Evidence WB~ for jur)' In lll~tlon tor
denth ot child tlu'uck h)' fiutornobile left
pnr'ked tuc-In,; down grnJt>. Hmlth v,
Juml:son. 89 Po.,Sllp~r, 99, 1926.
~ 3702. Limitations on backing
(a) General rule.-,No driver. ~hall back a vehicle unless the
movement can be made with safcty and without intcriering with
other traffic and tl)(~1l only ait('r yicldin~ thc right-ofoway to mov-
ing traffic and \'l.dcstrialls.
(b) Limited access highways.--,Xo drivcr shall hack a ,'chicle
upon any shouldcr or roadway of any limitcd acccss highway.
C.'OSS Reference.
1'olllts ll~scsSl...l for cOlIl'lctloll, ,"'t. ~ Jr.a;, ur this title.
AutomotJiles ~32~,
Llbrar7 RefereDce.
t',J,S. 1\[utOI' \'.hlel.. I ~88 .t ..q.
~ 3703. Driving u(Jon sidewalk
No pcrson shall drivc any vchiclc exc('pt a human-powered vehi-
cle upon a sidcwalk or sidewalk arca exccpt upon a permanent or
duly authorized tcmporary drivcway.
.1
Croll RefereDce.
l'edulcycleN 011 NldcwulkN, ','t. ~ 3508 of thiN tllle.
1562 PI,
.573 ATLANTIC REPORTER, 2d SERIES
nevertheless, not be entitled to the relief
for which he prays. A party who seekll
leave to allpeal nUllc pro tUIlC has the
burden of also establishing "that they act.
ed promptly to assert such a right upon
learning of the existence of the grounds
relied on for such relief." Commollwealth
v. B08sioll, at -, 568 A.2d at 1319. A
review of the record in the Instant case
evinces a lack of the requisite promptness
by Liptak. Liptak recei'ted a notice of sus.
pension of operator's privileges from the
Pennsylvania Department of Transporta.
tion, stemming from the conviction under.
lying this appeal, on or about ,January 24,
1989. After unsuccessfully appeuling his
license suspension, which uppeal was com.
menced February 9, 1989, "[Liptak w~sJ
prompted. .. to petition thl! lower COUI.t in
the Instance[sic] case to set aside his guilty
plea based upon the trooper's misrepresen-
tations." (Brief of Appellllnt, ut 3.) Lip.
tak's petition to the court of common pleus
was not filed until April 4, 1989.
Accordingly, the orders are affirmed.
William BRESSLER, Appellant,
v.
DANNON YOGURT and William
lIagstotz, Appellees.
Superior Court of Pennsylvllnla.
Argued June 5, 1989.
Filed April Ii, 1990.
Appeal was taken from order of the
Court of Common Pleas, Philadelphia Coun.
ty, No. 206 Aug. T., 1980, Wril{ht, J., en.
tered on jury verdict in personal Injury
action. After a divided panel reverseL, the
Superior Court, No. 02963 Philadelphia
1987, McEwen, J., held that: (1) it was
error to instruct jury that it was negli/o1'ent
for pedestrian to cross between intersec.
tions; (2) presumption of due care In favor
of deceased or Incapacitated person has
been abolished; and (:1) error In giving In-
structions h''1uired new trial on all issues.
Vacated and remanded.
Tamilia, J" concurred in the result.
their I
t.ency
e. Del
Net
PI
deceaE
abolisl
7, Dal
E\
could I
surger
was er
ery fr(
8, Dan
Be
necessi
tied to
suUeri:
jury f(
acciden
9. App.
WI
destriar
intersec
award I
issue o.
require!
1. Automobiles ~2t7m
Fact that plaintiff crossed between in.
tersections is insufficient to establish negli-
gence on part of the plaintiff. 75 Pa.C.S.A.
~ :l5.I:l(a).
2. Autolllobiles ~2.16(31)
Trial court's instr<Jctlons that they
should find perll'strian negligent if he
croMsl'd the street at a point other than
within a crosswalk or Intersection and that
a person who Is crossing the street other
than at an intersection or lIlarked cross.
walk should yield the rl!(ht of way to ali
vehicles improperly left the jurors with the
imprcssion that the pedestrian could be
fountl to be ne!(ligent solely because he
attempted to cross the street In the middle
of the block. 75 Pa.C.S.A. ~ 3543(a).
3. Autollloblles ~2.16(31)
Jury should have been instructed that
pedestrian may not cross between intersec.
tions without exercising due care.
4. Autollloblles ~2.\5(j2)
Whether pedestrian crossing between
intersections has exercised due care is a
question of fact to be determined by the
jury after being adequately instructed as to
the applicable standard of care. 75 Pa.C.
S.A. ~ :1543(a).
5. Appeal and Error ~106U(3)
Charl(e that pedestrian was negligent
in crossing in the middle of the intersection
was not harmless even though court in.
structed on presumption of due care of
pedestrian due to the fact that he was not
compptent to testify at the time of trial,
where the court repeatedly instructed the
jury that the presumption of due care
would be applicable only if the pedestrian's
incompetency resulted from the accident
and whel'e jury found, as evidenced by
Anthc
pellant.
Larry
pellees.
Befor,
BROSK
OLSZE\
JOHNS(
McE\\
We he
ment en'
William
and ass.
. Mellnsol
alion 01
I. Judie
ry dlrec
as to all
decision
d1sall'ec
BRESS1.ER v, DANNON YOGlJRT
ell... 571 .ud 86l (P..Super. 1990)
their award of damalfes, that the Incompe. $18,500. A divided panel' of this Court
tency did not result from the accident. found that the trial court had erred In
instructinl( the jury that "if you find thllt
6. lleath *=580) [appellant] was in the act of crossing the
Negligence cS=o122(J) rOllllway at n point other thllll within a
Presumption of due care in fllVor of n crosswalk or IIlI intersection IIIen you
dece~l6ed or incapacilllted party has been sllould find him /legligenl." (emphllsls
abohshed. supplied). Appelll'es filed a motion for
7. Damagel ol:=>tH6 rellrj/,'ument before thl' court ell ballcargu-
Evidencl' estJlblished thllt pedestrian ing that the award of alll'W trial was error
could not return to work on the day after and, in the alternati"'l', that if a new triall is
surgery necl'ssilll~d by accident and thus wnrmntetl, it should bl' limited to thl' issue
\\'as entitled to lost wages until his reco.... of the percl'nl:lgcs of comparati...e negli-
ery from surgical procedure. gence of the parties. We find upon a con.
side ration of till' chnrgc of the court as a
whole that II new trial is necessary as to
liability as well as darnagl's.
At approximately 8:00 a.m. on a summer
morning, appellee William Hagstotz, an em.
ployee of Dannon Yogurt, parked his deli....
l'ry ...an at 4045 Ridge A venue with the
motor running while he purchased coffee
from a reslllurnnt across the street. Ap-
pellant, William Bressler, lived above the
restnurant at 4084 Ridge Avenue and
worked across the street at 4045 Ridge
A venue as a machine operator for Burgess
& Whey. Hagstotz returned to his deliv-
ery van, opened the top on his coffee cup,
checked his two rear view mirrors, and,
when backing the van to mo...e from the
parking space into the lane of traffic,
struck appellant with the rear of the deliv.
ery van.
The only witness to the accident, Con.
stance Barber, was a passenger on a SEp.
TA bus which, while proceeding on Ridge
A venue in the same direction as the van,
had stopped to let the van into the line of
traffic. Ms. Barber ~stified that, while
seated on the bus, she saw appellee's van
back up and strike appellant. Although
the witness was unable to describe the
contact between the van. and appellant, she
testified that she saw appellant lying face
e in favor
,'non ha.
giving In.
all iuues.
hat they
nt if he
,her than
1 Ilnd that
eet other
,ed cross.
'ay to al\
with the
could be
cause he
he middle
43(a).
H. Domages ~32
Because jury found that opemtion was
necessilllted by accident, plaintiff was enti.
tIed to a reasonable amount for pain and
suffering from those injuries which the
jury found to ha...e been caused by the
accident.
9. Appeal ond .~rror <l);>1178(6)
Where erroneous inRtruction that pc.
rlestrian was neglil(ent in crossing between
intersections Illin~d the verdict of the jury,
award of new trial could not be limited to
issue of comparative negligence and was
required on all issues.
between
care is a
.d by the
cred as 10
75 Pa.C.
Anthony P. Baratlll, Philadelphia, for ap'
pellant.
Larry R. McDowell, Philadelphia, for ap-
pellees.
Before CIRILLO, President ,Judge,
BROSKY, ROWLEY, McEWEN,
OLSZEWSKI, TAMILlA, POPOVICH and
JOHNSON,' JJ.
I
, negligent
I' .ersectl?n
cou rt m-
. care of
I, was not
: of lrial,
i,lcred the
; :lue care
I Jeslrian'.
I accident
I mced by
,
~IcEWEN, Judl(e:
We here considcr an appeal from a judg.
ment enrered af~r a jury found appellant,
William Bressler, 50\", causally negligent
and assessed damages in the amount of
. Melin",n. J.. did not participate in the consider-
ation of or decision upon this appeal.
I. Judge Del Sole concluded that the "compulso-
ry dirCClion" required an award 01 . new trial
as to.1I j..ues. Judge Wieand eoncumd In the
decision that a ntw Irial wa!\ necess.'\ry but
di"'greed with the conclu.ion of Judge Del Sole
Pa. 563
that our Supreme' Court did not, in RicI v.
Shuman. 513 ra. 204. 519 A,2d 391 (1986). .bol.
ish the presumption of due care in lavor 01 a
deceased or Incapacitated party. Judie Cava.
naugh dl"enled. lindlns that the court', Instruc.
lions, when considered as a whole. were not
mlsleadins,
564 Pa,
m ATLANTIC REPORTER, 2d S.:RIES
down In the street after being hit. Ms.
Barber teatitled that the delivery van ap-
peared to be parked In the parking lane and
that there were vehicles parked in front of
and behind the van. Appellant, who com-
plained of numbness in his hands nnd fore-
arms upon regaining consciousness, was
treated at the emergency room of a local
hospital for lacerations of his head and face
and released.
Appellant ~uffered from a congenltnlah-
normality of the spine and limbs, skelcull
dysplasia or achondroplasia. [Jr. Eu)(ene
Kopila, an orthopedic surgeon specializing
in the treatment of skeletal dysplasia, ap-
peared as an expert witness for appelhlnt
Bnd testified that although he was unable
to make a precise diagnosis of appellant's
disorder, he believed that appellant suf.
fered from a form of skeletal dysplasia~,
probably in the I(roup of the saurismosis or
storage diseases. Dr. Kopits testified that
as a result of this condition, appellant was
short (4'-11") and had a narrowing of his
spinal canal and/or a meningeal constric.
tlon of a segment of his cervical spinal
cord. Dr. Kopits further testified that any
type of blow to the head or ncck or a
trauma such as general anesthesia could
cause an individual with this condition to
suddenly suffer a range of symptoms from
pain and weakness to paralysis and death.
Appellant, who had had his left hip re-
placed two years before the instant occur.
rence, underwent hip replacement surgery
on his right hip three months after the
accident. This surgery had been contem.
plated prior to the accident and was related
to appellant's conl(cnital abnormalities.
The medical records of the orthopedic sur.
geon who perf'Jrmerl the hip surgery sug.
gested that the surgery was successful and
appellant's recuperation une\'entful. How-
ever, the following spring, appellant bel(an
experiencing pain and weakness in his neck
and arms. Appellant's condition continued
Z. Dr. Kopiu Ic~liried: "In the particular ca~e of
Mr. Brc:ssler, he would fit, as far 3S I can see, in
the mucopolY5ac~harldosi5 group which, again,
mtans thai thc.'re is 3 ~tor3Ke of certain materi-
als different from each one: of the f.:ondition5
within the Iysosomu. Essentially lhey are ty'\o-
wrnal.enz)'mc diseaK!,.. (think il can be
to deteriorate and nlnet~en months afwr
the accident, he underwent a cervlcallaml-
nectomy complicated by congenital deform-
Ities of his eervlcal spine. The evidence
produced at trial suggested that appellant,
although still,'xperleaciag weakness of his
limbs, recovllred from the laminectomy.
However, tWI) and one,half years after the
accidcat, appellaat was admitted to Temple
University Hospital aad dhlgnosed as bav-
inK susuline,l some type of dalnBge to his
brain, possibly caused by a stroke. Appel.
lant exhibited weakOt'ss of his extremities,
sl,,'ech aplHL,ia aa,l disorientation at the
time of his admission and his condition
contiaued to deteriorate until he became
completely bedridden, unable to communi-
cate aad totally dependent upon his sister
for every facd of his existence.
Appellant's exp,m witnesses testified
that due to the con)(enital deformities of
his spine, the trauma of the accident precip.
itated a chain of events leading directly to
his present paralysis and brain damaKe.
Even appellant's experts, however, testified
that they did not know the extent of or the
exact mechanism which had caused the
brain damage suffered by appellant.
Appellees' expert, predictably, testified
that even if the accident had contributed to
the conditions necessitating the cervical
laminectomy nineteen months after the ac-
cident, there was no correlation or connec.
tion between the laminectomy and all of
the apparently permanent problems which
beset appl~lIant. Appellees argued that it
was just as likely that appellant's present
condition was the result of a fall which
allegedly occurred two years after the acci-
,lent. Appellees argued that baserl upon
the evidence indicating that appellant had
recovererl from the cervical laminectomy,
appellees could be found liable for It'age
1088('8 accruing ollly to the point at which
appellee claimed that appellant could
hal'e retllrned to u'ork following the lami.
n,eto,
pellanl
from
of th,
award
for IOl
tion f,
The
one, a.
sides.
cult ta
flictinl
ages (
effect
tion a
curren
incom(
lant's
was rr
decisio
of the
Appl
be awn
of the
which
fected
issue (
are COI
"It i:
that wi
tion at
instruc
term in,
Unless
onstrat
we wil
cies."
han, 51
(1984).
Super.
Jistarr
89, 549
Starch
36,40 (
ed the
tive du
I fir!
you.
3. The
theJul
lanl b.
cenlai
and f,
"mply explained for rhe sake of the Jury. Ihar.
yes, there arc certain conditions in which there
'is abnormal ~toraije of some components that
are normally pr~scnt, but for some obscure r~3'
son that \'-'C: do nol \'cl understand. in these
disCJ!ts, lhese 5Ub~I.H;CC5 are jusl st<lred up in
the ,(,'lIs and the ,ells can't Alet rid or it,"
after
Ilaml-
fonn-
id,nce
e\lant,
of his
tomy.
r the
emple
hav-
to his
ppel-
itles,
t the
dltion
'came
munl-
sister
nR.~SSLER v. DANNON YOGURT Pa. 565
CI..II 571 A.2d 56a IPI,SuP'" 1'190)
lIeetomy. As noted, the jury awarded ap- should not cross n roadway at any point
pellant $18,500, rt'presenting 10Ht way'os otlll'r thlLII within a crosswalk, at any
from the date of the arddellt to th,' dale IlIterseclion, or nny marked crosswalk.
of the eervieallamillcdomy,3 but failed to If so, hI' should yield the right of way to
Bwnrd any sum for pain and suffering or all vehicles upon the roadway. However,
for lost w~ges for any period of recupera. we hnve to take that in view of the
tion following the laminectomy. nwllcatioll of common sense.
The question of causation was a difficult We hll\'e here n plaintiff stepping off of
one, and was persuasively llrgued by both a curb to cross the street or at least
sides. The jury was faced with the dlffl- stllll<linl( at n point near the curb in the
cult task of llscertulnlng, based upon con- middle of n rontlway. We have to decide
flirting l!videnre, the respective percent. whether this plaintiff falls within the
ages of negllgencl' of the parties and th~ type of person that this accident [sic)
effect of the appelhlllt's pre-existing condl- was mennl to cover. If the plaintiff was
tion as w.ell. as the cause of appellant:s out there crossing in the middle of the
current inJuries. As a result of appellant s street there would be no doubt In our
incompetency, evidence concerning Bppel- minds' but here he is some distance mea-
lant's conduct at the time of the accident '"bl dl'stance from the curb.' The
I. I . . h' h d th suru e ,
wa~ ~ ntma, nhsltuatlon W.IC mal.e e question is whether an automobile that Is
deCISion as to t e compara~lv~ neg Igence backing up, and whom the plaintiff may
of the parties even more difficult.. or may not have any idea was backing
Appellant contends that .a new trial must up, is covered by this section of the act
be awarded because a portion of the charge which I will read again: "Every pedestrl-
of the c~urt was a "compulsory direction", an crossing a roadway at any point other
which nllsstuted the apphcable law and af- than within a crosswalk at an intersec-
~ected the decisi~n of the jury upon the tion, or any marked cros~walk, shall yield
Issue of th~ neghgence of appellant. We to the right of way to all vehicles upon
are constramed to agree. the roadway." Do you understund that,
"It is well settled in our Commonwealth ladies and gentlemen?
t~at when the ~ropl'iety of the !ury instruc- Now, we also have another statute which
~Ion of .'he trial cbour~ IS dat. ISSt ute, thodse says, "No driver shall back a vehicle
IIlstructlons must e vlewe 111 0 0 to e- I t' t n be made wl'th
. . . un css lie movemen ca
termme If any error has been committed. f t I 'lh t i terf' 'th th
d sa cyan< WI ou n ermg WI 0 er
Unless the charlo(e as a whole can be em- t ff' d th I fte . Id' th
. .. ra IC an en on y a r Yle mg e
onstrated to have caused prejudicial error, 'h f . t ff d d
we will not reverse for isolated inaccura- rl~ t 0" way to movmg ra IC an pe es.
. " R'ddl 'f ' I H 't I D trlans. So that thiS statute states that
cles. Ie" emorza 08pl a v. 0-. .'
hall 504 Pa 571 576 475 A 2d 1314 1316 no driver shall back hiS car up Without
1198'4). Acc~rd:' Elli:~ v. G;ave.~, 385 Pa. allowing pedestrians to have passed.
Super. 168, 171, 560 A.2d 220, 222 (1989); :ou must yield the right of way to mov-
Jisla rri v. Nappi, 378 Pa.Super. 583, 588- mg traffiC and pedcstrlans.
89, 549 A.2d 210, 213 (1988); Spearillg v. Now, the interpretation of the law is for
Starcher, 367 Pa.Super. 22, 28, ~32 A.2d the Court. However, as I said, the facts
36,40 (1987). The court In this case provid- arc for the jury. You must decide, based
ed the following instruction on the respec- upon the testimony you have heard,
tive duties of the parties: whether the plaintiff was in the act of
1 first want to discuss the liability with crossing the roadway. If YOll find that
you. The statute is clear that a person he Ula.~ in the act of er08.~ing the road.
tlfied
es of
reclp-
tly to
age.
tified
r the
the
mi-
chal.
there
Ihal
" rca.
~ these
. tp In
3. The verdlcl ,heet e..cut<d by the foreman of
,he jury found the driver of the truck and appel,
lant both causatively negllgenl. .......d the per-
centage of the negligence of appellant at 50%.
and found appellan!'. damage. to be $18,500.
The verdict ,heet bears Ihe h.ndwrlnen nol.-
tlon next to the amount of the damaln: "wales
from 8-1(}"78 [the date of the accident] 10 8-6-
gO [the date of the lamlneclomy]".
566 Pa.
/173 ATLAN'rIC REPORTEIl, 2d S.:RU:S
wor at a point other than withill a
CTOIIwalk or an intersection, then /IOU
3110uld find him lIegligent. If you find
that the driver was backing his vehicle
and that he was backing in a manner
that could RQt be made with safety and
without interfering with pedestrians,
then you will find the driver negligent.
Is that clear \Q you"
(N.T. 501>-506) (emphasis supplied).
The italicized portion of the charge of the
court was based, in part, upon Section
3543(a) of the Motor Vehicle Code, which
provides:
(a) General rule.-Every pedestrian
crossing a roadway at any point other
than within a crosswalk at any intersec.
tion or any marked crosswalk shall yield
the right-<jf.way to all vehicles upon the
roadway.
75 l'a.C.S. ~ 354:1(a).
[1] However, both the Supreme and Suo
perior Courts, in consi<lering the effect of
. this statute, have repeatedly held that the
mere fact that a plaintiff crossed between
inwl'lIections is insufficient to establish
negligence on the part of the plaintiff.
See, e.g., McKniff v. Wilso'l, 404 I'a. 647,
650, 172 A.2d 801, 80:1 (1961); Shuma'l 1'.
NoIJ1, 399 I'a. 211, 214, 159 A.2d 716, 718
(1960); Nugent v. Joerger, 387 I'a. 330,
332, 127 A.2d 697, 698 (1956); Ulmer V.
Hamilton, 383 I'a. :198, 119 A.2d 266
(\956); Moore V. Esso, Sta'ldard Oil Co.,
364 I'a. 343, 347, 72 A.2d 117, 120 (1950);
Barney V. Foradas. 305 l'a.Super. 404, 407,
451 A.2d 710, 712 (1982); LaL'ely I'. Wolota,
253 l'a.Super. 196,202, 384 A.2d 1298, 1302
(1978); Gregorich I'. Pep.~i-Cola M.B. Co.,
Inc., 230 l'a.Super. 144. 148, ;127 A.2d 171,
173 (1974); .l/oore I'. Zimmermall, 221 I'a.
Super. :l59, ;363, 292 A.2d 458, .160 (lll72);
Dean v. Trembley. 185 l'a.Super. 50, 51,
137 A.2d 880, 884 (1958).
Thus, the it.~licized ~'ortion of the charge,
\Q which appellant timely objected, was cer.
tainly erroneous. The trial court subse-
quently indicated to counsel, in response \Q
a question from the jury,' that it intended
.. The jury rcqu.,led lh.t lhey be provided ",
copy or be r~inrormed as to the law n~tCarding
\Q repeat Its earlier InstructionB. Coullsel
for appellant again argued that, bas~d
upon Gregorich v. P-.psi-Cola, suprn, the
compulsory direction on the duty of a pe-
destrian was a misstatement of the law.
The court, lifter reviewing (jregorich, pr<r
ceeded to charge the jury on the presump-
tion of due care, and the respective duties
of driver llnd pedestrian:
Now, I want \Q relld to you what I had
relLd earlier about the pedestrian and the
motorist.
"Every pedl!striall crossing a roadway at
any point other than within a crosswalk,
at an inwrsection, or any marked cross.
walk stulll yield the right of WIlY to all
vehicles UPOll the roadway."
Now, as I told you earlier, you have here
a vehicle that WllS on the roadway (Ull!
Koin\{ in reverse. We have here a plain.
tiff who was crossing at a point other
than within a crosswalk at an intersec.
tion or at a marked crosswalk. As the
law points out, he should yield the right
of way to all vehicles upon the roadway.
Is that clear to you"
Now, there is a section called "Limitation
on Backing, Going in Reverse: No driver
shall back a vehicle unless the movement
can be made with safety and without
interfering with other traffic and then
only after yielding the right of way \Q
moving traffic and pedestrians," and this
plaintiff was a pedestrian. Is that clear
to you"
N .T. 477-478.
[2] The trial judge, despite his earnest
effort to afford the jurors a clear under-
standing of the law and thereby the part;.cH
a fair trial, misstated the applicable law in
his original charge and failed, in his supple.
ment.~l instructions, to rcctify the error or
clarify the issue for the jury. At the con-
clusion of the supplemental charge, the
jury was still under the misapprehension
that appellant could be found negligent
solely because he had attempted \Q cross
Ridge A venue in the middle of the block.
[3. '
been
CroSIl
c1sinK
been
delen
q uale
dard ,
Pa. /)
(1961)
In.
350 I
Court
by a
other
held:
It II
tria
reg'
a hi
ty t
ing
ice,
Rue
A.21
appl
whe
pect
8ch
249,
tied
look
ing
ceeci
cum
betv
Auel
353.
5. Th.
prest!
W~
der
his
he
oce
the
for
lIor
fro
In).
the
per
stal
No'
1101
the dri....er :Ind the pcde!llrliln."
BRESSU:R v, IlANNON YOGURT Pa. 567
Cll... &75 A.1d &62 l''''up''. 1'1'101
13, 41 Th~ jury, instead, should hllw Th~ prlnHlry duty of 11 trial judg~ In
be~n Instructed that a p~destrlllll nHlY not clHlr!\,lnllll jury Is to clarify th~ Issues so
cross between inters~clions without ex~r' thllt th~ jury mllY comprehend the ques.
cislng due care, and whether such Cllre has tlons th~y ar~ to decide.... If the
been maintained is a question of filet to b~ chllr!\,e is wholly Illadequllte or not clear,
determined by the jury after being ad~. or has a tend~llcy to mislead and confuse
quately instructed aB to the applicable stan. rtlther thall to clarify th~ isslles, a new
dard of care. Brown 1'. J07leS, supra 404 trial will b~ grllnl.l'd. . .. Th~ functions
Pa. 613 at 617-618, 172 A.2d 8:1I at H34 of II trial judg~ ('mbrac~ not only th~
(1961). duty to 5tat~ to th~ jury correct princi.
In Auelt'. White, 389 I'a. 208, 132 A.2d pl~s of law appliellbl~ to the pending eas~
360 (1957), th~ I'ennsylvllnlll Suprem~ IIml to end~avor .to ma~~ such principl~s
Court set the stllndard of care to b~ used understllndabl~ m plam langullj(e, but
by a pedestrian when crossing II stre~t th~y also impos~ upon the judge the duty
other than at the intersection. The Court to assist th~ jury in applying those prinei.
held: pIes to the issues presented to them for
It is well established that where a pedes. determination. McE.'wa'l v. Yellow Cab
trian traverses a street at other than a Co., 182 Pa.Super. 219, 224, 126 A.2d
regular crossin!\, he is bound to exercise 816,819 (1956), quotill!\, Archer v. Penn.
a higher degree of care for his own safe. sylt'a7lia Railroad Co., 166 l'a.Super.
ty than would be the case were he crOBS' 638, 541, 72 A.2d 609, 611 (1960) (cita.
ing at an intersection. Harris t'. DeFel. lions omitted).
ice, 379 Pa. 469, 476, 109 A.2d 174; Speari7lg V. Starcher, 367 Pa.Super. 22, 29,
Ruche.,ki V. Wisswes.,er, 366 Pa. 400, 50 632 A.2d 36, 40 (1987). The jury in the
A.2d 291. The reason for the rule is instant case was misled as to the effect of
apparent for he is crossinl( at a place a findinl( that appellant was crossing the
where vehicular traffic could not be ex- street hetween intersections when hit.
pected to anticipate a pedestrian. Thus, the finding of the jury as to the
Schweitzer V. Scranton Bus Co., 344 Pa. neglil(ence of appellant cannot stand.
249, 25 A:2~ 156. It is equally we~1 set- (5) Appellee contends that the error
tied that It IS the duty of a pedestrllln to was harmless since the court charl(ed on
~ook before he undertakes a street cross- the presumption of due care. We find this
mg and to contmue to look as he pro- argument meritles8. The court in it.~
ceeds and such duty is particularly in. charge, repeatedly instructed the j'ury that
cumbent ~pon one. who traverses a street the presumption of due care would be ap-
between mtersectlons. plicable only if they found that appellant's
Auel v. White, supra at 213, 132 A.2d at incompetency "resulted from the acci.
353. dent".' ThUG, the jury never considered
~ounBeI
baaed
ra, the
rape.
Ie law.
h, pro-
esump-
duties
e here
,yand
plain.
other
OOrsec.
a the
. right
dway.
itation
driver
ement
ithout
then
'ay to
ld this
clear
Irnest
mder.
arties
aw in
,upple-
ror or
con-
, the
maion
Iigent
cross
I lock.
I
5. The coun's supplemental instruction on the
presumption of due care provided:
When a person injured in an 3C,'cident is. ren.
dered Incompetent by hi, Injuries or ha, lo,t
hi, memory a, a re,ult or hi, Injuries '0 that
he I. unable to I..tiry a' 10 how Ihe accident
occurred, the law preSUlnes that at the tim~ of
the accident that person was using due care
for his own ufety. However, this presump-
tion may be rebuned by evidence. Ir you rind
rrom a preponderance or the evidence thallhe
injured person wa~ nol uercising such care,
Ihen you mu", determine whelher Ihe Injured
penon'. conlrlbulory neSIlSence wa, a .ub.
"anllal ractor In brlnslns about hi. harm.
Now. you recall I told you aboul presump.
tions. Now you will hQlI, to dt'trmin~ whtth.
er the present incompetence of thu man i.J a
,..,u/, of this accident and then decide whether
he Ls ,milled to this prtswnpt,oll. Is that clear
to you? If you feel that his condition of in.
competence came "bout 45 a result of thiJ
accident. rhCII you can apply the prllJumptio/l;
bUI. al,o remember. thai however Ihi. pre.
,umption may be rebutlfd by evidence. Ir you
Hnd rrom a preponderance of Ihe evidence
that the' injured person was not ~xercislnB
such care, then you must determine whether
Ihe Injured penon'. contributory nesllsenee
wa, a ,ub,tamial raclor In brlnstns about hi.
harm.
So first you decid, wlrether tire Incompet,nce
multed from this accld,nt. If you find if did,
then h. i.l ,ntllted to tire prllJumption; bUI
then you must decide whether Ihal pre.ump.
568 Pm.
......... .
573 ATI.ANTIC Rl':POllUll, 2d Sl':rm~s
the presumption of dUll cllre In (IIvar llf
appellant since, 118 evidenced by their ver-
dict which restricted the aWlIrd of damages
to lost earnings only until the date o( the
lamln'lctomy, they concluded that IIppel-
lant's Incompetency had /wt been cllUsed
by the accident. .
[61 Although we are not convinced that
the presumption was applicable only where
the party's Incapacity could be proven to
have resulted (rom the lIccldent lit Issue,
the question is moot in light of the tlbalitlon
of the presumption of due care In favor of
a deceased or Incapacitated party by our
Supreme Court In Rice v. Shuman, Ina Pa.
204, 519 A.2d :191 (1986). We are per-
suaded, contrary to the decision of the pan-
elln Vihlidalu. Brann, :371 Pa.Super. 565,
538 A.2d 881 (1988), al/o. granled, 520 Pa.
61ll, 554 A.2d 510, January ai, 1989, ap-
peal dismis.~ed, March 21, 1990, hy our
study of the majority and dissenting opin-
. ions 6 in Rice that the Rice Court invalidat-
ed the presumption of due care for all
purposes. As noted by Chief Justice Nix,
"[a] definitive resolution by this Court of
the impar.t of comparative negligence
upon the continuing viability of the pre-
sumption of due care in the jurisdiction
has heretofore proven elusive. The diffi.
culty arose because of our failure to first
(ocus upon the role that the presumption
lion has ~en "butted by the evidenct. If
you find tlrat his present condition or that his
condition af inco",pttenc~ did nOf rtsuft from
this aCI.'iJ~nr, then he is not en/irled to tire
presumption ,u all. Is that clear to you?
N.T. 5~5-5~6 (empha,i, ,upplied).
6. The dissenting opinions in Rice also suggest
that the majority intended to abnlish the pre-
sumption ;\5 to all parties.
IT/his prc:sumplion-Ih~ presumption Ih.3t a
dec~a~(d or incompetent was using l.hle.;' care
at the time of the acc.:ident-has bl'cn and
should bt lliHn some weight as lwidence to be
weighed by the jury with any conflicting evi-
dence, and the jury ,hould be Instmcled to
view Ihe presumed facI (of due care) a. Ihe
equi,,.lent of testimony by the decedent or
incompetent that he was using due l.:are at the
lime of the accident.
Ria. "'pra at 21~. 519 A,2d at 397 (Larsen. J.
dissenting) (emphasl. In original).
7. Th4 court also provided cooflkting ln~truc.
tions upon the issue of contributory. negligence:
The defendants claim .hat the plaintiff was
contribulorily negligent and the defendanl
was p~rcelved to (ul(lIIand then to exam-
Ine its success In achieving the antkipa.
ted result. Utilizing such an analysis il
become8 obviou8 that the limited bene.
jit derived from the u.ye o/the pre81/ mp-
lioll under prior law is clearly no 101/g-
er prese/ltlUla re.~ult of the adoption 0/
a .~ystem of comparative negligel/ce
willtin Ihis jurisdiction".
Riu, .~upra at 209-10, 519 A.2d at :194
(emphasis supplied).
While this Coui't in Vihlidal V. Braul/,
supra, citing the failure of our Supreme
Court to specifiCIIlly overrule Waddle u.
Nolkin, 511 Pa. 1,41, 515 A.2d 909 (19~6).
concluded that the applicability of Rice was
limited to incapacltllted defendants, we be-
lieve, upon further reflection, that the
Court intended to abrogate the presump.
tion of due care, regardless o( whether It
was invoked by plaintiff or defendant, and
to substitute in its place "the recognition of
the natural instinct of self.preservatlon [as]
one of the factors that a jury may take into
consideration in evaluating the evidence of
negligence that is offered against any par.
ty so charged." !d. at 21a, 019 A.2d at
a96. In any event, as we have noted, our
study of the charge of the court as a
whole.' compels the conclusion that a new
trial must be awarded.
No
awarl
the If
the p
(oum
the a'
durin
datAl
lant's
lost v
tradk
have
the II
appel
periol
my.
travel
ferin.
any d
o( lif,
Th~
injury
will r
appea
will ~
wherE
pre;
thaI
of t
thel
takt
clea
den,
bea.
sufj
som
ther
tice
is s
perl
Deitn
478 t
Dawsl
32,55
Tien,
566, 5
[7,~
pellan
aiter
was e
ery (\
has the burden of proving rhe txlslence of
such negligence. One who is contribworily
negligent cannot reCOl/er damdges lor any inju.
ry Ire has sustained. It is not permissible to
/ltlfmrpt to balmrct, L'ompare, or match tlrt
negligence of one party aga;/J,.ft that of another,
You must, therefore, determine whether the
plaintiff was negligent in that 35 an ordinary
prud~nt person under all the drcumstan(es
Ih~n prescnt he f3i1cd to c:<erdsc reasonabll'
care for his own safl.;'ly. If you find that the
plaintiff was negligent, you must then deter,
mine whether Ihe plaintiffs conduct was a
substantial factor in bringing about any injury
to the plaintiff. If your .n,wer is affirmative
on both scores. that I'. th.t the plaintiff was
negligent .nd that hi, negligent conduct wa, a
substantial faclor in causing his Injury. then.
in accordance with certain rules that I will
give you l.ler, you will have to make a d<ter.
minalion 3S to whether your vt.rdict ~hould be
for the defendant. Tho.e rules, ladies all"
tl:entlemen, accord with the concept of ,ompa.
ratlve negligence. I will charge you later on
35 to comparative negligence.
N.T. ~47-478 (emphasi, supplied).
COM, v, ZELINSKI
Clio.. &73 A.2d &69 "....,.r. 19901
Pa. 569.
am.
'(pa.
Is it
ene.
mp.
ong-
1I0{
ence
Nor do we accept the contention that the
award of a new trial should be limited to
the issue of the conllJaratlve negligence of
the parties. The jury in the instant case
found by their verdict that, as a result of
the accident, appellant was unable to work
during the nineteen month period from the
date of the accident to the date of appel.
lant's cervical laminectomy, and awarded
lost wages for that period. Despite uncon-
tradicted evidence that appellant could not
have returned to work until months after
the laminectomy, the jury did not award
appellant any sum for lost wages for the
period of recovery following the lamlnecto.
my. Most Importantly. in spite of uncon.
troverted evidence concerning pain and suf.
fering, the jury did not award appellant
any damages for pain and suffering or loss
of life's pleasure.
The amount of the verdict in a personal
injury action, which is an issue for the jury,
will rarely be set aside as inadequate on
appeal. However, inadequacy of a verdict
will be found and a new trial awarded
where the verdict is
. .. so inadequate as to indicate passion,
prejudice, partiality, or corruption, or
that the jury disregarded the instructions
of the court, or in some instances, where
there was a vital misapprehension or mis.
take on the part of the jury, or where it
clearly appears from uncontradicted evi.
dence that the amount of the verdict
bears no reasonable relation to the loss
suffered by the plaintiff, or, according to
some of the cases, where, otherwise,
there has been an evident failure of jus.
tice to the plaintiff, or where the award
is so inadequate that it should not be
permitted to stand.
Deitrick v. Karnes, 329 Pa.Super. 372, 376,
478 A.2d 835, 83&-837 (1984). Accord:
Dawson v. Fowler, 384 Pa.Super. 329, 331-
32, 558 A.2d 565, 566-67 (1989); Reimer t'.
Tien, 356 Pa.Super. 192, 209-212, 514 A.2d
566, 574-575 (1986).
17,8) The evidence established that ap'
pellant could not return to work on the day
after the cervical laminectomy and thus
was entitled to lost wages until his recov.
ery from the surgical procedure. More.
394
aWl,
reme
Ie v.
986),
was
e be-
the
ump-
ler it
, and
'on of
n [as)
e into
Ice of
par.
2d at
nee of
u/orily
.y Inju.
.ibl. /0
leh /Jr.
no/h".
he, the
rdinary
stances
sonable
hat the
deter.
WIS.
Y injury
rmllllJC
tiff was
-' was.
.1hen,
t J wHI
a del""
, ould be
I., .nd
compa.
late, on
over, since the jury found that the opera.
tion had been necessitated by the accident,
appellant WIIS entitled to a reasonable
amount for pain and suffering for those
injuries which the jury found to have been
caused by the accident. See: Bedillion v.
F'razee, 408 !la. 281, 284, 183 A.2d 341, 343
(1962).
(9) As it is evident that the erroneOUR
instructions tainted the verdict of the jury,
the a ward of a new trilll cannot be limited
to the Issue of the comparative negligence
of the parties.
Judgment vacated. Cast! remanded.
Jurisdiction relinquished.
T AMILIA, J., concurs In the result.
w
o ,illY filUMIU \'l'\UM
COMMONWEALTH of Pennsylvania
v.
Rebecca ZELINSKI. Appellant.
Superior Court of Pennsylvania.
Argued Feb. 14, 1990.
Filed April 18, 1990.
Defendant was convicted in the Court
of Common Pleas, Monroe County, Crimi.
nal Division, No. 634-1988, Marsh, J., of
driving under the influence of alcohol, and
she appealed. The Superior Court, No.
2114 Philadelphia 1989, Olszewski, J., held
that: (1) defendant was not required to be
informed of the right tq have physkian of
her own choice draw and test blood; (2)
technician who took defendant's blood sam-
ple at hospital was a "qualified person";
(3) evidence was sufficient to support con-
viction; and (4) sentence imposed was not
excessive.
Affirmed.
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Ouest ion 51
If you have answered "Yes" to Questions 1/ 2/ 3 and 4/ then
answer the following I
Taking the combined negligence that was a substantial
factor in bringing about the harm to Plaintiff as 100 percent/ what
psrcentage of that causal negligence was attributable to Defendant
and what percentage was attributable to Plaintiff?
PERCENTAGE OF CASUAL NEGLIGENCE
ATTRIBUTABLE TO DEFENDANT I
ll/
\
PERCENTAGE OF CAUSAL NEGLIGENCE
ATTRIBUTABLE TO PLAINTIFFI
TOTAL
51
100\
\
If you have found Plaintiff's p~rcentage of negligence to be
greater than 50\/ Plaintiff can not recover and you should return
to the courtroom.
Ouestion 61
State the total amount of damages, if any/ you find Plaintiff
sustained as a result of the accident without regard to and without
reduction for the percentage of causal negligence / if any / that you
have attributed to her.
Total $
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I IN THB COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I CIVIL ACTION - LAW
I
I
I NO. 94-4115 CIVIL TERM
VILMA A. NEAL,
Plaintiff
NORMAN HUTCHISON,
Defendant
ORDER OF COURT
AND NOW, this 8th day ot July, 1996, juror number
69 i. excu.ed tor cause.
By the Court,
J.
MARCUS A. McKNIGHT, III,
For the Plaintitt
KAREN S. COATES, ESQUIRE
For the Detendant
ESQUIRE
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