Loading...
HomeMy WebLinkAbout95-3359 civil appeal3. A25017/00 LORE'I-FA Y. MATHIAS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF VIRGINIA E. BRESSLER, DECEASED, Appellant V. KIMBERLY ANN WELCH, Appellee IN THE SUPERIOR COURT OF PEN NSYLVANIA No. 1293 MDA 1999 Appeal from the Judgment entered May 24, 1999 in the Court of Common Pleas of Cumberland County, Civil Division, at No. 95-3359 Civil Term. BEFORE: McEWEN, P.]., LALLY-GREEN, and HESTER, .l]. MEMORANDUM: Appellant, Loretta Y. Mathias, appeals from the order entered October 4 1999, of the Cumberland County Court judgment in favor of Appellee.~ We affirm. of Common Pleas, granting The pertinent facts underlying this case as revealed through the trial court opinion are as follows: ~ Appeals are not properly taken from orders denying post-trial motions or exceptions; however, they are properly taken from a judgment or final decree that has been entered on the trial court docket. See, 42 Pa.R.A.P. 301; 42 Pa.R.C.P. 227.4. When a notice of appeal is filed after the announcement of an order but before the entry of a judgment or a final decree, and then the judgment or final decree is entered, the notice of appeal is treated as filed after the entry of judgment or final decree and on the date the order is entered as a judgment or a final decree. 42 Pa.R.A.P. 905(a). Here, Appellant filed a Notice of Appeal on June 23, 1999. The docket reflects that judgment was entered on the verdict on October 4, 1999. Although the verdict in this case was reduced to judgment after the Notice of Appeal was filed, the appeal is properly before this Court as a result of 42 Pa.R.A.P. 905(a). While the caption indicates that this appeal was taken from the order docketed May 24, 1999 (denying poSt-trial relief), we shall deem this appeal taken from the judgment entered on October 4, 1999. ]. A25017/00 At approximately 8:30 a.m. on November 5, 1994, [Appellant] decedent Virginia Bressler, age 80, while a pedestrian, was killed when she was struck by a Volkswagen sedan driven by [Appellee] 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 [Appellee] was negligent, but that the negligence.was not a substantial factor in bringing about Appellant decedent's harm. Appellant filed a motion for a new trial claiming that the verdict was against the weight of the evidence. [ApPellee] 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 [Appellant] decedent on the other side of the intersection in the street where the first car beyond the intersection would be parked. In a deposition, [Appellee] stated that [Appellant] was on the outside edge of the parking space. The speed limit for [Appellee] was 25 miles per hour. [Appellee] 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. [Appellee] testified that when she first saw [Appellant] decedent, she was standing still. At her deposition, she said that when she first saw [Appellant] decedent, she was walking across the street away from a bakery. [Appellee] testified that she continued to drive into the intersection, but slowed down. ]:n her deposition, she testified that she had slowed down in the middle of the intersection. [Appellee] testified that she thought [Appellant] 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. 2 ]. A25017/00 ~ [Appellant] decedent looked at her and started to speed up, but [Appellee] veered to the left and struck [Appellant] 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 [Appellant] 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 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 [Appellant] decedent come out of a bakery and walk onto the street in a westerly direction. She did not see if [Appellant] decedent looked for oncoming traffic. Miller testified that she heard [Appellee] brake. At that point, [Appellee] was in the northern one-half of the intersection. Miller saw [Appellee] swerve left as she continued beyond the intersection. [Appellant] decedent hurried to get out of the way, but the front passenger side of [Appellee]'s car struck her. In a prior statement, Miller had said that she saw [Appellant] 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 [Appellee]'s vehicle was on Bridge Street in the middle of the intersection and led to the point 3 ]. A25017/00 beyond the crosswalk on the north side of the intersection. He applied a coefficient of friction analysis in concluding that [Appellee] '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. [Appellee] 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 [Appellee] reacted "in a typical reaction time, reacted normally" with regard to this accident. Trial Court Opinion, 1-4. On June 22, 1995, Appellant Loretta Y. Mathias, as an individual and as the Executrix of the Estate of Virginia E. Bressler, initiated this action by filing a Complaint in the Court of Common Pleas of Cumberland County. Docket Entry 1. After a trial by jury on November 9, 1998, the jury returned a verdict in favor of Appellee. Docket Entry 115. The jury found that Appellee was negligent, but that her negligence was not a substantial factor in causing the accident. On November 20, 1998, Appellant filed a motion for a new trial, contending that the jury's verdict was against the weight of the evidence. Docket Entry 125. On May 24, 1999, the trial court judge denied Appellant's motion for a new trial. Docket Entry 239. This appeal followed.2 Docket Entry 250. 2 See, note 1, id. 4 ]. A25017/00 Appellant presents the following issues for our review: A. Whether the jury's verdict finding no causal negligence on the part of [Appellee] was against the weight of the evidence? B. Whether the lower court abused its discretion or committed an error of law in refusing to grant plaintiff a new trial because the jury's verdict was against the weight of the evidence? Appellant's Brief at 4. Basically, Appellant argues that the jury's verdict was against the weight of the evidence, and that the trial court erred in not granting a new trial as a result of said verdict. In reviewing whether the trial court erred in not granting a new trial, we must consider all of the evidence and should only grant a new trial when the verdict is so contrary to the evidence that it shocks one's sense of justice. Burnhauser v. Bumberger, 745 A.2d 1256, 1260-1261 (Pa. Super. 2000). We will not reverse the decision of the trial court in refusing to grant a new trial unless there has been a clear abuse of discretion or an error of law determinative to the outcome of the case. Bannar v. Miller, 701 A.2d 232, 239 (Pa. Super. 1997). We are also mindful that a jury is free to believe all, part, or none of the evidence presented. Nelson v. Hines, 653 A.2d 634, 637 (Pa. 1995) (citations omitted). However, "this rule is tempered by the requirement that the verdict must not be a product of passion, prejudice, partiality or corruption, and must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial." 5 .1. A25017/00 Id. Thus, the jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic. Id. Appellant argues that since the jury found that Appellee's conduct was negligent, its conclusion that Appellee's negligent actions were not a substantial factor in causing Appellant's death was against the weight of the evidence. The record reflects that Appellee was negligent in two respects. First, Appellee conceded that she has poor visual acuity,3 was driving without corrective lenses at the time of the accident, and was legally required on Appellee's Pennsylvania driving license to drive with the corrective lenses. Notes of Testimony, Trial, 11/09/98, 55-57. Second, evidence was presented indicating that Appellee was driving 2.77 miles per hour faster than the legal speed limit4 at the time she first applied her brakes in attempting to avoid the accident. N.T., Trial, 1:1./09/98, 25, 38-40. 3 Evidence presented at trial indicates that Appellee's visual acuity at the time of the accident was 20/200. See, N.T., Trial, 11/09/98, at 56; see also, N.T., Deposition of Dr. James D. Herbst, 09/08/98 at 6, Reproduced Record at 40(a). Appellant's expert optometrist testified that this means while an individual with normal vision (20/20) could see clearly an object from a distance of 200 feet, Appellee could only see that object with the same clarity from a distance of 20 feet. See, N.T., Deposition of Dr. James D. Herbst, 09/08/98, at 17, Reproduced Record at 42(a). Dr. Herbst also clarified that while Appellee could not see the hypothetical object at a distance greater than 20 feet as clearly as an individual with normal visual acuity, she could see the object. 4 Appellee conceded that the speed limit at the intersection where the accident took place was 25 miles per hour, and testified that she was driving her vehicle at a speed between 25-30 miles per hour. N.T., Trial, 11/09/98, 38-40. Officer Samuel Morgan, an expert accident reconstructionist, estimated Appellee's speed at the moment she applied her brakes to be at 27.77 miles per hour. N.T., Trial, 11/09/98, at 25. 6 J. A25017/00 The record also reflects ample evidence indicating that Appellee's negligent actions were not a substantial factor in causing Appellant's death. At trial, Appellee, two other eyewitnesses, and the investigating officer, Officer Samuel Morgan,' testified that the decedent was beyond the marked crosswalk and walked directly into the path of Appellee's oncoming vehicle. N.T., Trial, 11/09/98, 10, 31, 42, 46, 51-55, 62; N.T., Deposition of Christine Miller, 09/08/98, 6-21, Reproduced Record 33(a)-36(a). addition, Appellee introduced an expert in engineering and accident reconstruction who testified that Appellee "reacted in a typical reaction time, reacted normally." N.T., Trial, 11/09/98, 82-87. Further, Officer Samuel Morgan, a witness called by Appellant, confirmed that based on his analysis and examination of the accident scene, "[t]here was nothing that [Appellee] could have done" to avoid the accident. N.T., Trial, :[1/09/98, at 32. A review of the record reflects ample support for Appellee's defense that her actions were not the substantial cause of Appellant's death. Appellant has failed to demonstrate that the jury's verdict was so contrary to the evidence that it shocked one's conscience or that the trial court committed an abuse of discretion or an error of law in denying Appellant's motion for a new trial. Judgment affirmed. 7 J. A250'17/00 Pr~ l.~nt Ente~ Date: 8