Thompson v. City of Philadelphia
Thompson v. City of Philadelphia
Opinion of the Court
In these appeals from an order granting a new trial solely on the issue of comparative negligence, the parties challenge this court’s jurisdiction, the mootness of the appeal, the lower court’s jury instructions, and the propriety of a grant of a new trial. We find that the appeal is properly before us, and that only the grant of a new trial was error. Accordingly, we reverse and enter judgment upon the jury’s verdict.
On September 28, 1976, William Smith, an employee of Srein Furniture Carriers [Srein], drove his tractor-trailer through a guardrail at the end of the Spring Garden Street exit ramp and plunged onto the westbound lane of the Schuylkill Expressway, crushing the decedent’s vehicle. Plaintiff, decedent’s wife, sued Smith, Srein, the City of Philadelphia, and the Commonwealth in separate actions, alleging Smith’s negligence in driving, Srein’s vicarious liability, and the City’s and Commonwealth’s negligence in marking and maintaining their respective portions of the Expressway and exit ramp. Early during the consolidated trial Smith and Srein [hereinafter Smith] settled with the plaintiff for $400,000, but retained a right of contribution
The Commonwealth contends that this case should be transferred to the Commonwealth Court. We disagree. Although the Commonwealth Court generally has jurisdiction over civil actions pertaining to the Commonwealth, 42 Pa.C.S.A. § 762, both intermediate appellate courts may, on their own or a party’s motion, “transfer any appeal to the other court for consideration and decision with any matter pending in such other court involving the same or related questions of fact, law or discretion.” Id. § 705. Factors influencing the decision to transfer include: whether the case has already been transferred; whether it involves novel or well-settled questions; whether conflicting lines of authority might develop; and whether transfer would conserve judicial resources. Commonwealth v. 84 Quart Bottles of Bianco DiVerona Wine, 250 Pa.Superior Ct. 544, 378 A.2d 1282 (1977). Valley Forge Industries, Inc. v.
Smith contends that the City and Commonwealth’s appellate issues are mooted by the settlements with the plaintiff. Although all defendants have settled with the plaintiff, they dispute the apportionment of liability among themselves. The jury’s apportionment of negligence, as adjudicated in this appeal, will govern the defendants’ percentage of liability in their contribution actions against each other. 42 Pa.C.S.A. § 7102; Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639 (3d Cir. 1981). To allow the apportionment to stand without reviewing whether the record supports it could substantially prejudice the City and Commonwealth. Moreover, neither affirmance nor reversal of the lower court order would force the plaintiff to relitigate her claims, and thus this appeal does not violate the integrity of the settlements. We therefore address the merits.
The City and Commonwealth argue that the lower court should have granted their motions for judgment n.o.v. because the evidence was insufficient in law to support the verdict. We disagree. In reviewing a trial court’s denial of a motion for judgment n.o.v., the evidence, and all reasonable inferences, must be viewed in the light most favorable to the verdict-winner. Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Yandrich v. Radic, 291 Pa.Superior Ct. 75, 435 A.2d 226 (1981). So viewed, the evidence establishes that the Commonwealth was responsible for the expressway and exit ramp, and the City, by
The City contends that the lower court erred in denying its request for binding instructions that it had no duty to construct guardrails to withstand the impact of a negligently driven vehicle. We disagree. For the proposition that no duty exists, the City cites two cases, decided before the advent of comparative negligence, denying recovery to plaintiffs who negligently drove through guardrails. Ault v. Pennsylvania Railroad Co., 381 Pa. 496, 113 A.2d 150 (1955); Yocum v. Town of Bloomsburg, 289 Pa. 512, 137 A. 668 (1927).
The City contends next that even if it were negligent in using guardrails and signs, it is not liable because Smith’s negligent driving was a superseding cause. This contention lacks merit. Under Restatement (Second) of Torts, § 447,
An intervening negligent act will not be a superseding cause relieving the original actor from liability if that actor at the time of his negligent act should have realized that another person’s negligence might cause harm; or, if a reasonable man would not regard the occurrence of the intervening negligence as highly extraordinary; or, if the intervening act is not extraordinarily negligent. What the original actor should have realized and what a reasonable man would say was highly extraordinary are, of course, fact questions which must in the majority of cases be left to the jury.
Estate of Flickinger v. Ritsky, 452 Pa. 69, 75, 305 A.2d 40, 43 (1973) (original emphasis). Here, whether the City could have reasonably foreseen negligent operation of a tractor: trailer was a fact question for the jury. Evidence indicated the expressway was heavily travelled and that the City was aware of a more effective guardrail currently used in other states that could have prevented Smith’s vehicle from falling off the bridge. The record supports a jury conclusion that the accident causing decedent’s death was reasonably foreseeable, and thus we cannot rule as a matter of law that Smith’s driving was a superseding cause. Accordingly,
The City contends next that the lower court should have reduced its percentage of the verdict rather than ordering a new trial. This contention lacks merit. If a court holds a verdict against the weight of the evidence, the proper procedure is to set aside the verdict and grant a new trial. Interstate Creamery, Inc. v. Reinerth, 212 Pa.Superior Ct. 335, 243 A.2d 451 (1968). A verdict should be molded only when the jury’s intention is clear. Kardibin v. Associated Hardware, 284 Pa.Superior Ct. 586, 426 A.2d 649 (1981); May v. Pittsburgh Railways Co., 209 Pa.Superior Ct. 126, 224 A.2d 770 (1966). Here, the record does not indicate the precise facts the jury relied upon in determining the percentages of liability. To alter the percentages, the court would have had to assume facts not apparent from the verdict, and thus its refusal to reduce the City’s portion of negligence was not an abuse of discretion. Richards v. Dravo Corp., 249 Pa.Superior Ct. 47, 375 A.2d 750 (1977).
Finally, Smith contends the lower court erred in awarding a new trial on the issue of apportionment of negligence. We agree, finding that the record adequately supports the verdict allocating responsibility nearly equally among the three defendants. A court’s decision to grant a new trial because it finds the verdict against the weight of the evidence will be reversed only for an abuse of discretion. Yandrich v. Radic, supra. An abuse of discretion, being more than a mere error of judgment, occurs if the court’s conclusion overrides or misapplies the law, is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will as shown by evidence on the record. Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934). Nothing suggests the lower court here acted out of bias, but the court’s order exceeds the limited standards for the grant of a new trial because of the weight of the evidence, and thus misapplies the law.
These same narrow standards for new trial apply in reviewing a jury’s apportionment of negligence under the Comparative Negligence Act. 42 Pa.C.S.A. § 7102. Wisconsin, under a statute similar to Pennsylvania’s,
The precedents comparing negligence between landowners and others support such deference. In Warshany v. Supermarkets General Corp., 161 N.J.Super. 515, 391 A.2d 1271 (1978), the court remanded for a new trial because it found a jury’s award of 50% negligence against the landowner who created a dangerous condition to be too low. Here the lower court found a verdict of combined 70% negligence against the landowners to be too high. Although each case depends on its unique facts, such conflicting results would suggest oversupervision of the jury in contravention of our established standards. See Bourrassa v. Gateway Erectors, Inc., supra (upholding jury verdict of 83% negligence against contractor creating unsupported platform).
Here, the jury’s allocation of 30% causal negligence against the truck driver, Smith, was reasonable. Unlike the jury in Austin v. Ridge, supra, which attempted to assess liability against a non-party employer of a truckdriver by holding the driver involved in an accident 0% negligent, thus shocking the judicial conscience and requiring a new trial, the jury here found the driver negligent and substantially liable. Although Smith failed to correctly interpret traffic signs and road conditions, the record shows this error occurred on an unfamiliar, fast-moving, badly-signed high
For instance, the City of Philadelphia, having responsibility for the T-intersection, could have avoided the fatal consequences, according to expert testimony, simply by using a guard rail design as was used elsewhere on the expressway and at similar intersections in other states. Testimony also indicated that a 12" curb was an appropriate and available safety measure for such turns that could have reduced the risk of a turning vehicle jumping the rail. Moreover, other expert testimony stated that more prominent signing should have been used at this abrupt turn near high-speed traffic. A double-arrow warning sign or flashing lights was suggested to be visible from a greater distance than the ordinary stop signs and more effective in redirecting even an inattentive driver. The record shows Smith did eventually react, and thus that the lack of such warning could be considered a substantial factor in causing the accident. Just as this record supports the jury’s finding of liability against the City for its failure to take any of these readily available and relatively inexpensive precautions to protect against the foreseeable possibility of a negligent driver, Restatement (Second) of Torts, § 447, it also supports the
Finally, the record supports the allocation of liability to the Commonwealth for the overall design of this exit and the misleading signing of the highway. The detailed testimony about the signs’ location and content supports Smith’s allegation and the jury’s finding that the signs directing through-traffic to the airport led Smith onto the exit ramp. An early sign indicated airport traffic should keep right. A later sign before this right-side exit running parallel to traffic said “Airport-Keep Right.” No sign warned that the extreme right lane was for exiting traffic only. A prominent sign near the base of the exit said “Spring Garden Street” without saying “exit” or otherwise indicating that Spring Garden Street did not lead to the airport. These signs all preceded a very short exit from a high-speed roa,d that ended in the abrupt T-intersection. Thus, although two signs at the base of the ramp indicated the exit, the jury could reasonably conclude that the Commonwealth’s signs were negligently inadequate. A driver following the signs could be led to the base of the exit ramp at highway speeds, and if he missed the two signs at the base, would have no warning until it was too late. It is neither shocking to the judicial conscience nor patently unreasonable that a sign system and road design so vulnerable to a momentary lapse of attention could be found 35% liable for this accident. Accordingly, we reverse the lower court’s award of a new trial and enter judgment upon the jury’s allocation of liability. Jurisdiction is not retained.
Reversed.
. Of the $500,000, $400,000 was for the survival action, $100,000 for wrongful death. Upon finding the Commonwealth had not been timely sued for wrongful death, the lower court vacated the Commonwealth’s portion of the $100,000 verdict, reducing the total of damages to $465,000.
. Development in the state of the art has also eroded the precedent established in Yocum v. Town of Bloomsburg, supra. When that case was decided in the nineteen-twenties, evidence indicated that even the strongest guardrails available could not have withstood the impact of an automobile. At trial here, however, evidence indicated that several states use a guardrail that could have prevented the tractor-trailer from falling off the bridge.
. Compare 42 Pa.C.S.A. § 7102 with Wis.Stat.Ann. § 895.045. See 1 Pa.LegJ. 1707 (Senate 1976) (legislative history with Sen. Hager remarking that the "Bill comes almost exclusively from the Wisconsin statute. ... It has worked very well in Wisconsin and it is my understanding and my hope that in Pennsylvania it will work the same way.’’) See abo Symposium, Comparative Negligence in Pennsylvania, 24 Villanova L.Rev. 453 (1979).
Concurring in Part
concurring and dissenting:
I dissent from the majority’s reversal of the trial court’s award of a new trial on the issue of comparative negligence but join in the remainder of its opinion. Following a detailed review of the entire record of this case, it is my
The record of this case sets forth incontrovertible facts and circumstances of such weight that I am convinced that an injustice has been done. It is clear from the record that, for no apparent reason, Smith, the truck driver, failed to see two large signs that directed traffic, exiting at Spring Garden Street, to bear right. There was undisputed evidence that a speed limit sign that read “Exit, 25 miles per hour” was located at the bottom of the ramp, which Smith also failed to observe. The record further indicates that two thirty inch “STOP” signs were placed at the end of the exit ramp—one on the right side and one on the left side—which Smith, again, testified that he did not see. All signs were boldly printed and in good condition. Despite these warnings, Smith proceeded up the ramp at a speed of 40 to 45 miles per hour, and, while neglecting to apply his brakes, attempted to negotiate a left turn. In doing so, his right tire blew out and his tractor-trailer plunged over the bridge, killing the decedent.
The fact that Smith may have been lost or confused does not excuse his failure to comply with traffic regulations. He had a duty to operate his tractor-trailer in a manner which did not endanger any person or property, 75 Pa.C. S.A. § 3714; to operate his vehicle within the posted speed limit, 75 Pa.C.S.A. § 3361; and to bring his vehicle to a complete stop where official “STOP” signs had been erected, 75 Pa.C.S.A. § 3323.
The majority attempts to distinguish the facts of this case from those in Caldwell v. Piggly-Wiggly Madison Co., 32 Wis.2d 447, 145 N.W.2d 745 (1966) and Warshany v. Supermarkets General Corporation, 161 N.J.Super. 515, 391 A.2d 1271 (1978). The majority indicates that in Caldwell, the duties of each defendant involved were virtually identi
I would affirm the order of the trial court granting a new trial on the issue of comparative negligence.
Reference
- Full Case Name
- Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. CITY OF PHILADELPHIA and William Smith and Srein Furniture Carriers, Inc. (Five Cases) Appeal of William SMITH and Srein Furniture Carriers, Inc. (Three Cases) Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. William SMITH and Srein Furniture Carriers, Inc., Appellants; Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. COMMONWEALTH of Pennsylvania. (Four Cases) Appeal of SREIN FURNITURE CARRIERS, INC., and William Smith. Appeal of CITY OF PHILADELPHIA. (Six Cases) Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. William SMITH and Srein Furniture Carriers, Inc. (Three Cases) Appeal of COMMONWEALTH of Pennsylvania. (Two Cases) Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. COMMONWEALTH of Pennsylvania, Appellant; Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. William SMITH and Srein Furniture Carriers, Inc., Appellant
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- 10 cases
- Status
- Published