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HomeMy WebLinkAbout95-3359 civilLORE'I-FA Y. MATHIAS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF VIRGINIA E. BRESSLER, DECEASED, PLAINTIFF KIMBERLY ANN WELCH, DEFENDANT · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA 95-3359 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR A NEW TRIAL OPINION AND ORDER OF COURT BEFORE BAYLEY, J. Bayley, J., May 24, 1999:-- At approximately 8:30 a.m. on November 5, 1994, plaintiff decedent Virginia Bressler, age 80, while a pedestrian, was killed when she was struck by a Volkswagen sedan driven by defendant Kimberly Ann Welch, age 16. Loretta Y. Mathias, the daughter and executrix of the estate of Virginia E. Bressler, instituted this suit for damages arising out of the accident. On November 10, 1998, a jury found that defendant was negligent but that the negligence was not a substantial factor in bringing about plaintiff's harm. Plaintiff filed a motion for a new trial claiming that the verdict was against the weight of the evidence. Defendant testified that she was driving north on Bridge Street in the Borough of New Cumberland on her way to work at a part-time job. She was not wearing corrective lenses at the time of the accident as was required on her Pennsylvania driver's license. As she approached the intersection of Third Street a traffic light was green. She saw plaintiff decedent on the other side of the intersection in the street where the first car beyond the intersection would be parked. In a deposition, 95-3359 CIVIL TERM defendant said that plaintiff decedent was on the outside edge of the parking space. The speed limit for defendant was 25 miles per hour. Defendant testified that she was driving between 25 and 30 miles per hour. Several days after the accident she gave a statement saying that she was driving 30 miles per hour. Defendant testified that when she first saw plaintiff decedent she was standing still. At her deposition she said that when she first saw plaintiff decedent she was walking across the street away from a bakery. Defendant testified that she continued to drive into the intersection but slowed down. In her deposition she testified that she had slowed down in the middle of the intersection. Defendant testified that she thought plaintiff decedent would see her and go back to the curb, but she walked across the street without hesitating. She stated that when she was about halfway into the intersection she hit her brakes. Plaintiff decedent looked at her and started to speed up but defendant veered to the left and struck plaintiff decedent who was approximately five feet north of the crosswalk on the north side of the intersection. There were two witnesses to the accident. Betsy Clark was traveling west on Third Street and was stopped at the red light at the intersection of Bridge Street in preparation to make a right hand turn. A bakery was on the corner to her right. Clark testified that she saw plaintiff decedent standing still on the sidewalk near the curb on Bridge Street. Clark turned to look at the light and the next thing she saw was the impact of the accident which was beyond the intersection crosswalk. Christine Miller was traveling east on Third Street and was stopped for the red light at the intersection -2- 95-3359 CIVIL TERM with Bridge Street. She saw a car parked on Bridge Street in front of the bakery in the second parking spot closest to the intersection of Third Street. Miller testified that she saw plaintiff decedent come out of a bakery and walk onto the street in a westerly direction. She did not see if plaintiff decedent looked for oncoming traffic. Miller testified that she heard defendant brake. At that point defendant was in the northern one-half of the intersection. Miller saw defendant swerve left as she continued beyond the intersection. Plaintiff decedent hurried to get out of the way but the front passenger side of defendant's car struck her. In a prior statement Miller had said that she saw plaintiff decedent running out of the bakery and narrowly missing another car on the street. At trial Miller testified that did not happen. Officer Samuel Morgan of the Lower Allen Township Police Department arrived at the scene of the accident at 9:00 a.m. Officer Morgan is a qualified accident reconstructionist. He measured skid marks of 57.66 feet that started when defendant's vehicle was on Bridge Street in the middle of the intersection and led to the point beyond the crosswalk on the north side of the intersection. He applied a coefficient of friction analysis in concluding that defendant's speed at the start of the skid was 27.77 miles per hour. At that speed, Officer Morgan was of the opinion that the accident was unavoidable from where the skid marks started. Defendant called Kevin E. O'Connor who is a consulting engineer and accident reconstructionist. O'Connor testified as to a driver's reaction time to danger. O'Connor was of the opinion that defendant reacted "[i]n a typical reaction time, -3- 95-3359 CIVIL TERM reacted normally" with regard to this accident. DISCUSSION In her brief, plaintiff argues that: A new trial is warranted in this case because the jury's verdict was against the weight of the evidence in three important ways: 1. The jury disregarded or gave insufficient weight to Defendant's failure to wear her required corrective lenses, as a cause of the Accident; 2. The jury disregarded or gave insufficient weight to Defendant's opportunity and failure to avoid the Accident, when she did see the Decedent in the roadway; and 3. Despite the uncontroverted testimony to the contrary, the jury irrationally concluded that the Decedent's conduct, and not that of Defendant, was the cause of the Accident. The grant of a new trial based on the weight of the evidence is within the sound discretion of the court. Krymalski by Krymalski v. Tarasovich, 424 Pa. Super. 121 (1993). The evidence supporting a verdict must be so inherently improbable or at variance with admitted or proven facts or with ordinary experience, as to render the verdict shocking to the court's sense of justice. Brindley v. Woodland Village Restaurant, 438 Pa. Super. 385 (1995). The jury was charged on the general principles of negligence, ordinary care, legal causation and on the duties of a pedestrian. The following charge was given on the duty of a motorist: A driver has a duty to maintain a proper lookout and to observe what is occurring in front of her vehicle. The duty to exercise ordinary care and keep a proper lookout involves not only the duty to look but also the duty to see what an ordinary prudent person exercising ordinary -4- 95-3359 CIVIL TERM care would have seen under the circumstances. A driver must see what should have been seen and the failure to do so will not excuse her from liability. A driver has an affirmative duty to observe a pedestrian in her range of vision and to take precautions not to injure the pedestrian. If a pedestrian, before being hit by a car, has been on a street for a sufficient period of time such that a careful driver could see her and avoid an accident, and if the pedestrian is then hit, you may conclude that the driver was negligent. If you find that defendant breached any duty owed to plaintiff decedent, defendant would be negligent. If you find that any such negligence was a substantial factor in causing the accident, then defendant would be causally negligent. The Vehicle Code of Pennsylvania prohibits any person who has a visual restriction on her driver's license from operating a motor vehicle without wearing appropriate corrective lenses. If you find that defendant violated this statute, then such a violation would constitute negligence per se. If you find that any such violation was a substantial factor in causing the accident, then defendant would be causally negligent. The Vehicle Code of Pennsylvania prohibits a driver from exceeding the posted speed limit. If you find that defendant violated this statute, then such a violation would constitute negligence per se. If you find that any such violation was a substantial factor in causing the accident, then defendant would be causally negligent. Defendant admitted that she was driving between 25 and 30 miles per hour in a 25 mile per hour zone, and both Officer Morgan and Kevin O'Connor testified that the physical evidence showed that she was exceeding the 25 mile per hour speed limit when her car started to skid in the intersection of Bridge and Third Street. It is a violation of the Vehicle Code at 75 Pa.C.S. Section 3362 to exceed the speed limit. It is a violation of a regulation of the Department of Transportation at 67 Pa. Code § 83.3 to not wear required corrective lenses when driving. The violation of a statute or a regulation constitutes negligence per se. Gravlin v. Fredavid Builders and Developers, 450 Pa. Super. 655 (1996). However, for defendant to be liable to plaintiff based on any such violation that conduct must have been a substantial factor -5- 95-3359 CIVIL TERM in bringing about the accident and harm to plaintiff. Volponi v. Borough of Bristol, 122 Pa. Commw. 192 (1988). To establish legal causation the negligent conduct of a defendant must be a substantial factor in causing the accident. Id. The jury was charged that a substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with the accident. Jeter v. Owens- Corning Fiberglass Corp., et al., 716 A.2d 633 (Pa. Super. 1998). This court has not hesitated to reverse verdicts of juries that we have found were against the weight of the evidence. See Lenk v. Feaser, 47 Cumberland L.J. 224 (1998), aff'd m Pa. Super. m (718 HBG 1998, March 2, 1999); Heintzelman v. Odiorne, et al., (96 Civil 2863, opinion and order entered March 18, 1998); Houser v. Sears Roebuck, et al., 45 Cumberland L.J. 282 (1996), aff'd 701 Pa. Super. 787 (1997). The facts in the present case, however, do not support such a conclusion. In Burrell v. Philadelphia Electric Company, 438 Pa. 286 (1970), defendant driver struck and injured a minor bicyclist. The minor plaintiff testified that he was riding his bicycle on a sidewalk. As he was trying to get his foot on the pedal his bicycle went off the sidewalk and into the street. At the approximate midpoint of the street, he was struck by a truck driven by defendant. This account was corroborated by an eight-year-old playmate of plaintiff. Defendant testified that he was driving at no more than 8 to 10 miles per hour. He saw plaintiff from the time he entered the street about a block from the point where the accident occurred. Plaintiff was riding in the -6- 95-3359 CIVIL TERM street and not on the sidewalk and he had no apparent difficulty operating his bicycle. Defendant testified that when the bicycle was approximately six feet in front of him and four feet to the side of his truck it swerved suddenly into the path of the truck. Defendant applied the brakes immediately but it was too late to avoid the accident. The case was submitted to a jury solely on the issue of the negligence of defendant. The jury returned a verdict in favor of the defendant and the Superior Court of Pennsylvania affirmed on plaintiff's appeal alleging that the verdict was against the weight of the evidence. The Court stated: In this case, there was no evidence that defendant truck driver had operated his vehicle at an excessive speed. Compare Pritchard v. Malatesta, 421 Pa. 11,218 A.2d 753 (1966). On the contrary, the testimony of the defendant and of the investigating officer indicates that defendant was proceeding very slowly. The only testimony on the question of whether defendant was attentive was his own, and although his credibility was for the jury, they apparently believed his statement that he had observed the minor plaintiff for some time and had reduced his speed as a precaution against some unexpected action by the boy. In awarding the new trial, the court below expressed the opinion that, '[h]e [the truck driver] certainly could see that this was a very young child and he certainly should have anticipated that he would suddenly turn to the left or possibly fall off the bicycle into the path of the truck.' It is of course true that 'the driver of a motor vehicle must exercise the care reasonably necessary to avoid an accident when approaching a place where there is reason to apprehend that children may come into a place of danger.' Ondrusek v. Zahn, 356 Pa. 537, 539, 52 A.2d 461 (1947). But such a driver 'is not bound under all circumstances to anticipate what a child in a place of safety on a sidewalk may do, or that such a child will suddenly dart from the side of the street and run across the street immediately in front of or into the side of his car.' Ondrusek v. Zahn, supra, 356 Pa. at 539-40; Wilson v. Butler Motor Transit Co., 368 Pa. 479, 481, 84 A.2d 207 (1951). Thus even if, as the driver here testified, the minor plaintiff was riding on the street rather than the sidewalk, the driver had no absolute duty to anticipate that the minor plaintiff would suddenly swerve and -7- 95-3359 CIVIL TERM without warning move into the path of his truck some six feet in front of him. In a case of this sort the reasonableness of the driver's conduct was primarily a matter for the jury; the verdicts returned reflect the jurors' conviction that the driver here did not proceed in a negligent fashion. That conclusion is amply supported by the evidence. (Emphasis added.) In the case sub judice, it was for the jury to determine when defendant first saw plaintiff decedent, where plaintiff decedent was, what plaintiff decedent did, what defendant should have anticipated or not have anticipated as she continued to move toward and then into the intersection, how fast defendant was going, and whether defendant acted prudently under the circumstances. The jury was entitled to believe all, some, or none of the evidence. Raftner v. Raymark Industries, Inc., 429 Pa. Super. 360 (1993). The facts are much like those in Burrell v. Philadelphia Electric Co., supra., although unlike Burrell, there was evidence that defendant was exceeding the speed limit to some extent, and that she was not wearing required corrective lenses. Plaintiff presented the testimony of an ophthalmologist, James D. Herbst. Dr. Herbst testified that defendant's uncorrected visual acuity at the time of the accident was 20/200. He testified that visual acuity is the ability to see clearly, to distinguish separation, discriminate contour, detect the detail of an object and to discern slight differences in contrast between an image or object and its background. A person with 20/200 vision compared to somebody who has 20/20 vision must move from 200 feet to 20 feet to see the same object as clearly as an individual who is 20/20 can see it at 200 feet. It is the clearness of what one sees that is affected by reduced visual acuity. -8- 95-3359 CIVIL TERM The jury's finding that defendant was negligent is supported by what it could have concluded were her violations of exceeding the speed limit and driving without required corrective lenses. However, given the evidence that plaintiff decedent walked right into the path of defendant's oncoming vehicle, the distances involved, the speed of defendant's vehicle, and her reaction to these circumstances, we conclude that there was evidence from which the jury could determine that such violations were not a substantial factor in causing the accident. If the jury had concluded that defendant was generally negligent as contrasted to being negligent because of a violation of a statute or regulation, such a finding would have had to be a substantial factor in causing the accident. The jury, however, did not make specific findings in determining that defendant was negligent. On the facts of this case there was sufficient evidence for the jury to conclude that defendant was not generally negligent. The evidence supporting the verdict is not so inherently improbable or at variance with admitted or proven facts or with ordinary experience that it shocks our sense of justice. AND NOW. this IS DENIED. ORDER OF COURT day of May. 1999. the motion of plaintiff for a new trial. -9- By the Cou~.~~~''' . 95-3359 CIVIL TERM Steven R. Williams, Esquire For Plaintiff Karen Durkin, Esquire For Defendant :saa -10-