*1 381 A.2d Carolyn et al. ALBERT Sue
v. Alter, Shaffer, ALTER, Roy E. Jr. M. Ronald Keith John and Ronald Earl Shaffer. et Louise GALLO al.
Anita v. Shaffer, ALTER, Roy Alter, Jr. M. Ronald E. Keith
John Earl and Ronald Shaffer.
Cynthia D. et al. SOLOMON
v. Alter, Shaffer, ALTER, Roy E. Jr. M. Ronald Keith John Earl and Ronald Shaffer. Jay et al. CALDWELL
Martha
v. Shaffer, Alter, ALTER, Roy Ronald E. Jr. M. John Keith and Ronald Earl Shaffer. (All Roy Actions).
Appeal ALTER and M. Alter Keith John Pennsylvania. Court of Superior Argued April 1977. Dec. 1977.
Decided *5 Jr., Avra for Pershing, Greensburg, appellants. N. Breman, Wedner, E. Irwin B. James Joseph and A. Beink- Sr., 197, 198, for at Nos. emper, Pittsburgh, appellees and 199. Ambrose, Jr.,
Joel A. Claster and J. New Kens- Raymond at No. 200. for ington, appellee WATKINS, JACOBS, Judge, President and Before HOFFMAN, CERCONE, SPAETH, PRICE and JJ.
HOFFMAN, Judge: (1) contend that the trial court erred in re- Appellants a new trial because the verdict was fusing grant against evidence; (2) in permitting to ask weight appellee concerning absence of reflectors prejudicial questions in charging and on their lights erroneously absence; in the term cause in (3) using legal charge; its a new trial because the verdicts were (4) refusing grant excessive. We with final contention with agree appellants’ and, therefore, to one we reverse and respect appellee, for a new trial limited to the issue of damages remand for *6 appellee. one 28, 1972, m., 8 p.
On October at the four approximately minor met at the M. Alter farm to plaintiffs1 Roy partici- in a pate hayride organized by youth group United Church in Calvary Presbyterian Leechburg, West- moreland The consisted of County. group approximately people chaperones. and two adult At about 8:30 young p. m., on its The departed hayride. young Church Calvary on the tractor were seated drawn with people haywagon over legs dangling their both the road and the berm sides. miles, After a few the tractor turned onto Garver’s Ferry Road, lane, a two road in a semi-rural area. A asphalt few car, moments later driven Shaffer, Jr., Ronald E. from approached haywagon opposite direction. The Shaffer vehicle collided with the left front of the haywagon and the four plaintiffs herein suffered as a injuries result of the collision. trial,
At a number of witnesses testified and conflicting accounts the accident evolved. The plaintiffs introduced into evidence several photographs taken at the scene of the accident on the it night occurred. The first police officer to arrive at the scene testified that both vehicles were dam- in the left front. He aged stated that he measured the width the road bed at the scene and that it was 16 feet wide. He measured the width of the wagon and found it to that, 8be feet. He also stated based his own upon observa- tions, he the wagon concluded was wider than the tractor. The had two red and a wagon lights reflector at the rear but had no reflectors or lights. other The officer’s
Appellant John Keith Alter testified that he was travel- north on Garver’s Road on the ling Ferry night question. He endeavored at all times to maintain the tractor and on the of the wagon right side road. From the time that car, Alter about 500 feet first saw Shaffer’s he drove away, so that it was on its own side wagon of the road. The h.; 6 m. proceeding p. tractor was at Alter stated that the coming car was “fast”. When the car was approxi- Shaffer 100 feet Alter noticed that it mately away, had crossed the of the was approaching center road and the tractor and He tried to move his vehicles further to the wagon. right was unable to too far because of some go but mailboxes He about 3 feet from the further stated that he roadway. a left light waved over the wheel of the tractor to draw attention to the width of the vehicle. At the time of the his vehicle impact light was near street and almost half of was off the road. rig The owner of the tractor Alter, M. wagon, Roy testified that he and his had been family conducting hay He years. rides for stated that the approximately wagon was 8 feet wide and Yllh feet The tractor was long. inches wide in the front and feet 4 inches wide at the rear wheels. The equipped tractor was with two tractor lights located on a on the wheel column. steering bar The lights three approximately apart were feet and were directed so illuminated the road for they about 30 feet ahead. Mr. Alter stated that only lights reflectors on the trailer were at the rear where two red lights a reflector were located.
Two of the minor and the two plaintiffs chaperones testi- fied. None saw the approaching Shaffer car because they were not facing oncoming traffic. Wayne Szajna, whose Road, home is situated on Garver’s Ferry testified that on night of the accident he was his driving car in the same direction as the on Garver’s haywagon Ferry Road. Mr. testified that the was in Szajna haywagon the center of the and; it, road in order to he was forced pass to leave the left lane and travel on the left partially berm. The accident occurred a few moments after Mr. Szajna reached his home which is one half mile from the at which point he passed the wagon. Sacks,
John L. a professional legal photographer, testified for the defendants that on May two and one-half accident, years after the he measured the at roadway scene of the accident. The was 17 roadway feet 4 inches wide.
At the conclusion of the testimony concerning liability, plaintiffs introduced medical testimony prove the amount The damages. treating each physician, plaintiff, and one parent testified with respect the extent of the injuries suffered.
The jury returned the verdict: following “Ladies and gentleman harken to Jury, your ver- dict: Was Ronald in the negligent Shaffer operation automobile and was that a negligence legal cause of the accident and injuries? Answer: No. Was John Keith Alter negligent and was that a negligence legal cause of the accident and Answer: Yes. injuries? Was M. Alter Roy Negligent and was that a negligence legal cause of the accident and injuries? Answer: Yes. Was Shaffer, Ronald Alter, Keith Alter concurrently negligent M. and John Roy cause of the negligence legal was that concurrent and No.” Answer: injuries? accident and awarded, as molded the court to reflect The amounts follows: were as parents, expenses $ expenses 884.50 ......... Martha Caldwell: $10,000.00 remainder ..............$10,884.50 Total 2,021.43 expenses $ Carolyn Albert: .......... $35,000.00 remainder ..............$37,021.43 Total 2,626.43 expenses $ Cynthia ........ Solomon: $25,000.00 remainder ..............$27,626.43 Total 4,779.29 expenses $ Anita Gallo: ............. $100,000.00 remainder .............$104,779.29 Total motions for a new trial. After oral filed Appellants court en banc denied these motions. This argument, followed. appeal first contend that the lower court
Appellants a new trial because failing grant its discretion in abused the evidence. weight Spe were against the verdicts that the and lower court contend appellants cifically, The negligence. evidence of Shaffer's ignored improperly " well-settled, is of a grant law in Pennsylvania `[t]he of the trial judge, within the sound discretion new trial is of all relevant but offering testimony, who at the present absolute; this will review is not Court that discretion will the court below and reverse if it determines action of abused its palpably that it acted discretion.' capriciously 1, 4, (1969), Pa. 255 A.2d Austin v. Ridge, `A new trial should not be granted cases there cited. conflict in or because the trial testimony because of a mere have arrived at a different on the same facts would judge it Neither should ordinarily conclusion: omitted]. [citation against that the verdict was granted ground be on the is conflicting of the evidence where the evidence weight have found for either Carroll v. might party.' the jury
213 436, 445-446, 505, Pittsburgh, 368 Pa. 84 509 (1951). A.2d A new trial should awarded on be the that ground the verdict is against the the weight only evidence when the jury's verdict contrary is so to the evidence to shock as one's sense of justice and of a imperative the award new trial is so that right be another to may given prevail. opportunity Jones v. Williams, 559, 564, 57; 58 A.2d Carroll v. Pittsburgh, 447, 505; 368 84 supra, Pa. at A.2d Brown v. McLean Co., 427, Pa. Trucking 429-430, 434 256 A.2d (1969)." 606 Co., 288, Burrell v. Phila. Elect. 438 286, 289, Pa. 265 A.2d 516, (1970); Co., 517 Brown v. McLean Trucking Pa. (1969); A.2d 606 Dixon v. Andrew Tile Manufactur ing Corp., Super. 238 Pa. A.2d 667
Our review of the record in the instant case convinces us that the conflicting evidence is offered sufficient support a verdict against appellants. Appellants selectively review the record and out: point several witnesses testified that the maintained hay wagon road; its own side of the the accident occurred near a street light; Schaffer had on his low beams and not see did the hay wagon; and Shaffer did not reduce his even speed though lights the tractor glared in his eyes. upon facts, Based these and other appellants contend that Shaffer was negligent and that a new trial However, must be granted. have appellants ignored the which the testimony verdict. The supports witnesses testi times, fied that at appellant the travelled in center of the road; the bed was 8 wagon feet wide and road, the as wide; measured was police, only 16 feet the tractor lights were so together close gave the they impression that a small car was approaching; had his Shaffer car under h.; control at p. 30-35 m. no wagon had side or front lights; and the lights tractor momentarily glared in Shaf fer's eyes. A determination liability instant case involved the necessarily jury's resolution of issues of credi bility the witnesses. The court and had jury the opportu nity observe the demeanor of the witnesses. The jury reviewed conflicting testimony and returned a verdict only against We will appellants. not a new grant trial on weight against the verdict ground conflicting evidence is could
evidence when the
*10
Anderson,
of
Hilliard v.
party.
in favor
either
have decided
Therefore, we
625,
(1970).
find that
Pa.
Appellants
on the haywagon
of reflectors and
was
lights
of the absence
attorneys questioned
At
the
prejudicial.
plaintiffs'
trial
presence
the witnesses about the
and location
almost all of
lower court
The
overruled
haywagon.
the
on
lights
of
to
evidence. The introduction of
this
appellants' objection
the trial court and will
by
is controlled
relevant testimony
an
unless there is
abuse of
appeal
on
not be reversed
Steel,
517,
235 Pa.Super.
v. Weirton
discretion. See Piso
in
v.
Thompson
As stated
American Steel
(1975).
A.2d
7,
Co.,
(1934):
Whether the to the issue of the Alters’ and relevant lights clearly to The Alters’ failure negligence. equip the Shaffers’ to made it difficult see vehicle at lights with wagon to have excused Shaffer’s failure observe the may night Thus, the nature this prior lighting to on wagon impact. on the issue of probative negli was wagon extremely Further, we do think that several questioning not gence. was lights prejudical about the sufficiently witnesses was not calculated to in reversal. The evidence require or prejudice, hostility, sympa- emotions jury’s flame The decision thy.2 to admit the relevant was well testimony within the discretion of trial court and we find no abuse of that power. also contend
Appellants
the court erroneously
on The Vehicle
charged
Code lighting requirements
for the wagon.3 Appellant
that The
initially alleges
Vehicle
Code definition of trailer
excludes
specifically
the haywagon
from the lighting
The
requirements.
definition of trailer is
as follows:
vehicle
“Every
without motive power, designed
or
or
carry property
passengers
designed and used exclu
on its own
living quarters wholly
structure,
for
sively
and to
be drawn
a motor
by
Provided,
vehicle
tractor:
That
wagons, wagons equipped with trailer hitch and agricultural
drawn
motor
machinery
vehicles or tractors
for
transportation
agricultural
products
the owner of
*11
such wagons, wagons
with trailer
equipped
hitch or machin
ery, or
from such
returning
transportation,
shall not be
definition,
included within such
and no fees shall be required
to operate such vehicles on the public highways.” Act of
10, 1972,
Jan.
(1971),
177,
1,
P.L. 665
No.
amended,
as
75
§
emphasized
prejudice,
context,
2. 2. "Itshould be
in this
means
simply damage
opponent's
party's
more than
to the
A
cause.
case is
always damaged by
contrary
evidence that the facts are
to his
contentions;
ground
but that cannot be
for exclusion. What is
tendency
meant here is an undue
an
In
to move the tribunal to decide on
basis,
improper
commonly, though
always,
not
an emotional one.
Sloan, J.,
pungent phrase
Rollo,
428,
438,
the
in State v.
221 Or.
422,
(1960),
party
351 P.2d
the
`is entitled to hit as hard as he can
above,
below,
See,
(R.D. 1971)
but not
the belt.'
F.R.Ev.
403 and
competition
proper
improper
Note. Since this
decision is
between
bases for
involved,
it is natural that what one court calls `unfair
prejudice',
may
issues,'
another
refer to as `confusion of
or `distrac
"
jury
tion of the
from the issue it should determine.' McCormick on
Evidence,
(Second
1970).
§
at
n. 31
Ed.
charged
jury
3. The court
lighting require-
the
on the Vehicle Code
by stating
ments for
required
trailers
that such vehicles are
to have
two rear reflectors and two side reflectors.
It also instructed the
jury
requires
display
the Code
the Alter vehicle to
two electric
lamps
clearance
lights
in the front visible for 500 feet. These
must
height
be mounted to indicate the extreme
and width of the vehicle.
required
equipped
Trailers are also
to be
with four electric side
lights
yards.
marker
visible from a distance of 500
The court also
charged
jury
the
on the definition of a trailer and a farm tractor.
of the statute reveals that
102. A careful scrutiny
P.S. §
fact,
are,
to
vehicles which
in
farm
only
the exclusion applies
or are
in work
products
engaged
transporting agricultural
A
without
of a farm.
vehicle
to the operation
incident
falls
carry
designed
passengers
which
power
motive
of a trailer. This view is sup-
the
definition
within
code
Ditzler,
v.
217 a would be visible at distance of feet. 500 the instant case, the parties testified that see the they could lights feet; at a distance approaching vehicles of 500 there is no that or vehicles visible testimony persons were at 500 feet. Further, the admitted into photographs evidence clearly demonstrate that the accident occurred in a semi-rural town- ship. There is no evidence that small the one street lamp evident on the scene was able to the illuminate area so as to the satisfy of The requirements Vehicle Code’s exception. We cannot from a silent presume record the lights Therefore, the area were the trial court adequate. properly refused an instruction. that the use
Appellants argue of the words legal cause in the lower charge court’s instead of proximate cause was erroneous. also was They allege it misleading and confusing due to the court’s prior reference the legal requirements of The Vehicle Code.4 courts have
Pennsylvania
stated:
frequently
"[a]s
`in all cases
questioning
accuracy
charge
to the jury,
we must not
challenged
take the
words
passage
or
out of the
context of the
charge,
whole
but must look to the charge in
its
entirety, against
background of
evidence in the
particular case, to determine
or
whether
not error was
committed and whether that error
prejudicial
was
to the
complaining
Whitner v.
party'.
Lojeski,
448,
454,
889,
263 A.2d
also,
See
Wilson v. Penna. R. R.
Co.,
A.2d 763 Torts, 431 (Second) of The Restatement (1975). § 530 A.2d follows: as provides harm to is a cause of legal conduct negligent
“The actor’s if another factor in about the bring his conduct is a substantial
(a) harm, and the actor from liabili relieving is no rule of law
(b) (b)there his has negligence in which the manner because of ty has been approach The Restatement in the harm." resulted courts. In Whitner v. Pennsylvania approved by specifically 894, 458, Supreme A.2d at 263 supra, Lojeski, at subject to this approach Restatement stated: "The Court 431 and 432 have law. Sections stranger Pennsylvania no Al times this Court. many by upon and relied been cited in cause in 431 differs of legal § the definition though Penn in the pre-Restatement found from that terminology not to stated authoritatively has been cases, it sylvania factual situations. substance, specific applied as differ in Annotations to the Pennsylvania Vol. II of Eldredge, See infal attributing Without Restatement, (1938). §§ better, in the think it Restatement, we would to the libility its to utilize clarity, hopefully consistency interest of (footnotes causation." legal to the problem approach Knavel, 234 Pa.Super. v. also Noon omitted) See A.2d 545 court followed the the lower the instant case It the words cause. legal by using
Restatement § reiterating of cause by on the issue charged jury clearly factor been a substantial must have actor’s conduct that the no require There is alleged. the harm about bringing cause”, words “proximate the exact the court use ment that The considera magic. important no holds phrase for that on the the trial court given that the explanation tion is in clear and understandable given of causation be issue whole, as a we do charge Moreover, viewing language. The court did confusing. misleading it to be not find on instruct lighting requirements The Vehi- cle Code. It did not use the “legal words requirements” *14 respect with to the lighting regulations for trailers. The court did not state or that the absence of imply the lights conduct, constituted nor did it negligent state or imply that the mere absence of the was a cause of lights the accident. Instead, after outlining Vehicle Code requirements to the jury, the court a gave complete charge on what consti- tutes negligent that, conduct. It then charged even if there conduct, were negligent in order to find that liability, negli- gent conduct must have been a substantial factor in bring- ing Therefore, about the accident. we find that the court’s whole, considered as a charge, was thorough, accurate, and clear.
Appellants next contend that the verdicts were excessive and that a new trial should be awarded. We first consider this contention with respect plaintiffs Albert, Carolyn Solomon, Cynthia and Martha Caldwell.
Dr. Ferian testified that he treated Martha Caldwell for injuries she received in the accident. He stated lacerations, that she suffered swelling and scratches on both ankles. X-rays revealed that the malleolus shaft of her left ankle was fractured. She was hospitalized for 12 days. After healed, the lacerations the doctor applied a cast to her left leg which she wore for approximately six weeks. He stated that Ms. Caldwell has now completely recovered. Counsel introduced the doctor and hospital bills into evi- dence. Both Ms. Caldwell and her mother testified about injuries, Martha’s her inability participate in school activi- ties, and the care she at required home.
Doctor Brady testified that he assisted in an operation on performed Cynthia injuries Solomon for which she re- ceived in the hayride incident. Dr. Brady stated that Ms. a Solomon suffered comminuted compound fracture of the malleolus,5 medial a torn major ligament, a severed major nerve, loss of malleolus, of the medial tip and poor projection 5. Malleolus is the rounded lateral leg on each bone of the at the ankle. a degloving also sustained leg. the left She circulation of assisted Dr. Brady foot. Dr. Schwartz right on the injury6 Ms. was on Solomon. She surgery emergency in performing a cast on her wore subsequently days for hospitalized Dr. testified Schwartz right leg. on her splint and a leg left the latest although was good, recovery Ms. Solomon’s the ankle joint. arthritis of degenerative revealed x-rays Ms. were introduced. hospital and those His bills injuries about the former’s mother testified and her Solomon on her activities. limitations resulting and the Albert for Carolyn that he treated testified Dr. also Brady He stated that in the accident. received which she injuries undermined, contused, ragged, widely extremely she had of the dorso-lateral laceration contaminated grossly also had a laceration of the foot. She of the right aspect *15 help in the forefoot which to originate muscles that short were hollowed out for 4 The tissues the toes bring upward. from the cut. had bruises She inches in both directions or 5 veins were lacerated Several legs. half of both on the lower were tissue fatty of subcutaneous or 6 centimeters and 5 on Brady performed surgery Dr. away. completely stripped for six Albert; days. Subsequent- was hospitalized she Ms. the of separate portions that three Dr. realized Brady ly, the loss complete died because of had flaps undermined skin Albert was readmitted to Ms. blood supply. of their 1972, 13, for skin She grafting. on December hospital was limited. mobility again and her for 10 days remained and the bills. hospital the doctor both Counsel introduced on her feet and has legs, to the scars Albert, in addition Ms. her which leg the lower third of of deformity a visible tissue was fatty area where the a hollowed out consists of testi- Albert and her mother both away. Carolyn stripped limited activi- subsequently injuries about Carolyn’s fied ties. or re granting we note that
Initially, "[t]he is new trial because of excessiveness for a of a motion fusing peeled off of injury in which the skin is degloving is one A6. underlying distance. tissues for some
221
within the
peculiarly
discretion of
trial court and will
not be interfered with
this court unless the
by
record disclos
es a clear abuse of
George,
discretion. Hall v.
563,
403 Pa.
(1961).
Dr. Vossoughi first treated Ms. Gallo on October for injuries she which received in the accident. She had on contusions both and a legs fracture of the first metatar- sal of her left foot. He treated the fracture by taping and bandaging the foot and her providing with crutches. Her fracture had September 18, healed by 1973. Ms. Gallo missed approximately one month of school. Sometime sub- sequent accident, to the developed she low back pain and Donaldson, consulted Dr. an orthopedic surgeon. He as- was from double scoliosis7 suffering Ms. certained that Gallo Dr. treated Ms. Gallo by Donaldson and spondylolisthesis.8 belt and exces- prohibiting low back supportive a prescribing 8,1974, Ms. still had October Gallo By physical activity. sive and Dr. Donaldson decided to spondylolisthesis symptomatic 4, 1974, performed Dr. Donaldson November On operate. lumbar vertebra across the from the fourth fusion spinal This the sacrum. surgery vertebra onto fifth lumbar to be taken incisions, because bone had chips two required Gallo was to onto the vertebra. Ms. graft from pelvis could not return to school until weeks and three hospitalized and, as a was successful of 1975. The fusion February in the lower back. limited motion result, permanent she had testified about the extensive and her mother Ms. Both Gallo Anita, the effect of the debilitating opera- suffered pain in which she could not participate. activities tion, and the back resulted from the injury to whether the respect With incident, following Gallo testi- plaintiff produced hayride mony: and spondylolis- it be both scoliosis
“Q. say Would fair things? type are developmental thesis because there are many is idiopathic “A. The scoliosis that we know the cause or disease scoliosis types other we can—the spondylolisthesis, with them. associated it is there is a definite inheri- come to we can closest one of the patients probably in many tance pattern it. develop tendency defect or inherits the scoliosis, idiopathic nobody of this type, “A. Scoliosis curvature, but There are known types the cause. knows girls seen in adolescent as commonly most is the pattern this or the male sex. to other ages compared you idiopathic us she has what call You’re “Q. telling cause? unknown scoliosis
“A. Yes. spine. an curvature 7. Scoliosis is abnormal Spondylolisthesis defect in one or more vertebrae. is a 8. *17 “A. This condition has [spondylolisthesis] two associa- tions which are important. patients One is that who have a of curvature of the spine idiopathic which type, this patient has, have a of higher percentage spondylolisthesis in the low than back the routine population. Second, the of presence spondylolisthesis tends to occur in families. In words, other if we have a patient with spondylolisthesis, the chances of another member in the family having it are much higher one than would find the ordinary For family. time this led long us believe that the defect is an defect, inherited but subsequent studies have shown this is not true. always So current thinking the defect or tendency develop a defect is inheritant. .
“Q. medical your expert can opinion, tell you us within the realm of reasonable medical certainty as to whether not or have an you opinion as to the cause of the led pain operation which to the you’ve which described? BY MR. PERSHING: Proceed.
BY MR. BEINKEMPER: Proceed.
“Q. can You answer the question.
“A. The surgery was performed because she had sympto- matic spondylolisthesis and had shown inadequate response to conservative treatment. .
“Q. One final question, Doctor. Based on reasonable Doctor, medical do certainty, an you have opinion as to the cause of Miss Gallo’s low back pain.
“A. Miss Gallo’s pain, based on her history, had its onset to the subsequent accident of October, 1972. Her pain was back, in the low in the area where the spondylolisthesis described . previously exited.
“Q. about What spondylolistheses?
“A. may It either be painful non-painful.
“Q. Can it be painful regardless any contributing factor in itself?
“A. A
who
patient
has spondylolisthesis has some precipi-
tating episode
degrees.
varying
That the reason they go
*18
we see
who
is not
patients
Most
the doctor.
to see
found,
some other test.
but because of
has been
because it
I
we see like that.
see so
who
patients
a few
There are
the low back
scoliosis,
routinely X-ray
I
with
many patients
it.”
and I find
of
regardless
symptoms
Ms.
failed to es
that
Gallo
contend
Appellants
the
the occurrence of
connection between
a causal
tablish
operation. Pennsylvania
and
pain
and her back
accident
is
injury
a
case when there
personal
that in
law is clear
case
accident
the
between the
and
relationship
causal
obvious
no
to
is
estab
testimony
necessary
medical
unequivocal
injury,
German,
47,
434 Pa.
253
v.
connection. Smith
the causal
lish
Co.,
419,
Sears,
388 Pa.
v.
Roebuck &
Florig
(1969);
107
A.2d
Ruckno, Inc.,
Pa.Super.
v.
180
(1957); Washko
445
130 A.2d
Co.,
v. Philadelphia
Rich
Abattoir
(1956);
606,
"In McCrosson
568,
(1925), our
492, 495-496,
Supreme
129 A.
569
Pa.
283
for
concerning
sufficiency
test
forth a legal
set
Court
which
`required
witnesses
expert
testimony by
causation
that,
opinion,
"professional
.
.
in his
.
testify
expert
come from
result
the cause
question
alleged..
[did]
cases since McCrosson have estab
. ."' Numerous
witness must assert that the result in
expert
lished that the
from the cause
It is not
alleged.
came
question actually
cause
or `could
alleged
`possibly',
enough
say
result, that it `could
account'
very properly
have' led to the
result,
even that it was
`very highly probable'
for the
Sears,
Co.,
v.
Niggel
the result."
Roebuck &
it caused
353, 354, 355,
718,
281 A.2d
719 (1971); Menarde v.
Pa.Super.
Co.,
497,
(1954);
Trans.
376 Pa.
In case at we applying conclude that the Dr. Donaldson expert testimony by failed requirements to meet the established causation. prove that, in his did the doctor state in his testimony Nowhere the back and expert opinion, pain spondylolisthesis resulted the of the accident. In response from trauma to questions Gallo, suffered Ms. pain by about the cause of the the doctor to the accident of pain developed subsequent stated that the October, not establish a causal link between 1972. He does He later states that spondylolisthesis. the accident and have spondylolisthesis experience pre most who a patients which necessitates a visit to the doctor at episode cipitating Dr. Donaldson did not time the defect is discovered. which Ms. Gallo was the the accident suffered testify develop case which caused her to in her factor precipitating Because Ms. Gallo has spondylolisthesis.9 symptomatic link between the causal requisite to establish failed back, we must reverse and her injury accident them a that we should grant contend Appellants remand. However, must consider their con- we generally. new trial of permits granting case law which in of light tention of damages. to the issue trial limited new “ of new trial limited to issue of a granting ‘"`The . the common law. . under was not damages permitted expedite and in order to However, justice the interest of in and most litigation, Pennsylvania disposition the final permitting a rule wisely adopted have jurisdictions other circumstances.' specific under certain limited new trials such Smereczniak, 7, 9, 235 A.2d v. Troncatti (1) was two-fold: in Troncatti The test set forth (1967). determined; (2) have been fairly must liability issue from the readily separable must be damages the question new Troncatti, the award of a limited liability. issue of issue had been liability fairly because trial was affirmed errors, and the issues were no trial e., i. there determined, 398, 242 212 Pa.Super. v. Slough, Rosen were Cf. separable. v. Gagliano was reaffirmed This test A.2d *20 232-233, 319, (1970): A.2d 320 263 Ditzler, 230, trial, limited to a new may grant . a lower court `. . (1) question liability where the only damages, the issue of (2) the damages, and question with is not intertwined pre-existing if she had a recovered even could have 9. Ms. Gallo testimony, aggrava through expert proved, that the if she condition Heck v. the accident. See condition was caused tion of that Beers, 140, (1966); Corp., 87 Boushell v. Beryllium Pa. 226 A.2d 424 439, (1969). Inc., The Restatement Pa.Super. A.2d 682 258 215 Torts, negligent (1965) provides: actor is "The (Second) 461 § although physical liability condition subject to another for harm to the actor known nor should be known is neither of the other which injury greater which the actor as a reasonable than that makes the probable result of his conduct." as a should have foreseen man
227
(a)
(b)
is either
not contested or
has been
issue of liability
that no substantial
can be
complaint
determined so
fairly
Barnes,
also Bacsick v.
234
made with
thereto.' See
respect
616, 625,
(1975)." Lininger
In the cases Alter, v. verdicts are Alter; Solomon Cynthia v. Alter, we reverse Anita Gallo v. In the case of affirmed. new trial. for a limited and remand CERCONE, J., concurring opinion. files a ' in the considera- VOORT, J., did not participate VAN der this case. tion or decision of concurring:
CERCONE, Judge, estimation, because, in my majority opinion in the I join fell far short of in this case testimony medical expert Bashline, Pa.Super. v. in Hamil provided A.2d 1366 notes indicated that he received a radio call about the 9:35, clear, accident at about that the weather was dry that the dark. The sky was officer was unable to ascertain point of impact. Albert, Solomon, appellees 1. For convenience we shall refer to Cald- well, plaintiffs. as Gallo Each of the drivers to a different testified version of the testified that he Appellee events. Shaffer was travelling on Road at m. p. south Garver’s about 9:30 As his car Ferry hill, crested a he observed the lights of an approaching vehicle. The vehicle was about 150 to 200 yards away when first its lights. lights Shaffer observed Because the were so close that it was a small together, sports he assumed car. narrow, stated that the road was dry, Shaffer and had some He stated that he potholes. unequivocally drove on the However, hand side of the road at all right times. tractor in his and he lights glared eyes momentarily did not after see the until the accident occurred. He haywagon that he was at 30-35 m. travelling p. testified h. an area and that his car was under control unposted at all times.