Jeffrey Bortner was killed when a vehicle in which he was a passenger left a two-lane road in York County and overturned. Bortner and the driver, Rodger E. Gladfelter, had been drinking wine prior to the accident, and Gladfelter, a jury found, was visibly intoxicated. 1 The jury concluded that Bortner, age 18, and Gladfelter, age 17, were both negligent and that their negligence was equally responsible (50%) for Bortner’s death. The jury also determined that the damages sustained in the wrongful death action were in the amount of $3,283.70, being the amount of the funeral expenses, 2 and that no damages had been sustained in the survival action. Plaintiff filed a motion for new trial, and when it was denied this appeal followed.
Appellant contends that it was error to admit into evidence the alcohol level contained in blood drawn from appellee approximately one hour after the accident. There is no merit in this argument. This evidence was relevant to assist the jury in determining whether plaintiff’s decedent had been guilty of contributory negligence or had assumed the risk of riding with an intoxicated driver. To permit such a finding, of course, it was necessary that appellee show by a preponderance of the evidence that plaintiff’s decedent knew of the risk and appreciated its unreasonable character.
Weaver v. Clabaugh,
Appellant also argues that the trial court improperly instructed the jury to apply an “average man” standard of conduct in determining whether his decedent had voluntarily assumed the risk. However, appellant failed to object to this instruction; and, therefore, he is precluded on appeal from assigning the alleged error as a basis for a new trial.
Broxie v. Household Finance Company,
Whether to grant a new trial because of inadequacy of the verdict is peculiarly within the competence of the trial court, and its discretion is considerable. Its action, therefore, will not be disturbed on appeal except where there has been a clear abuse of discretion.
Wilson v. Nelson,
“[T]o support the granting of a new trial for inadequacy, ‘the injustice of the verdict should stand forth like a beacon.’ So long as the verdict bears a reasonable resemblance to the damages proved, it is not the function of the court to substitute its judgment for that of the jury.
Elza v. Chovan,
The purpose of the Wrongful Death Act of April 15, 1851, as amended, 12 P.S. § 1601 et seq.,
3
was to compensate certain enumerated relatives of the decedent for pecuniary loss sustained because they had been deprived of that portion of the decedent’s earnings which they would have received if the decedent had not died prematurely.
Pezzulli v. D’Ambrosia,
In the instant case, the jury’s verdict in the wrongful death action was for Bortner’s funeral expenses. The evidence was such that the jury could reasonably conclude that the decedent’s parents sustained no further pecuniary loss as a consequence of their son’s death. He had attained his 18th birthday prior to death but had been living with and had been supported primarily by his parents. He was employed as a mechanic by York Transportation and was earning $3.00 per hour. He also assisted, on a part-time basis, in his father’s small automobile repair business. His talents and economic resources were such that a college education was unlikely, his future earnings were limited to those of an automobile mechanic, and the likelihood that those earnings would have been shared with his parents was not great. Based on this evidence, we are unable to say that the verdict in the wrongful death action was unreasonable.
However, the finding in the survival action that the decedent’s estate sustained no pecuniary loss is unreasonable and not supported by the evidence. With respect to this item of damage, the jury was properly instructed to ascertain what the earnings of the deceased person would have been during the period of his life expectancy and to deduct therefrom the probable cost of his maintenance as shown by the evidence.
See McClinton v. White,
In view of this evidence, a refusal to find that the decedent’s estate had sustained any pecuniary loss is shocking. The “injustice of the verdict . .. stand[s] forth like a beacon.”
Elza
v.
Chovan, supra
The verdict cannot be explained as a compromise. In response to a special interrogatory, the jury found that 50% of the total causal negligence was attributable to appellee and 50% to the decedent. When asked to state “the amount of damages, if any, sustained by the plaintiff as a result of the accident without regard to and without reduction by the percentage of causal negligence, if any, that you have attributed to the plaintiff’s decedent,” the jury answered: “No figure.” This suggests that the jury must have been influenced by a misconception of the law, or by some other improper consideration. Where a jury refuses to give any recovery at all to a litigant who is entitled to at least some recovery, “we can have no confidence in the fairness of the jury’s deliberations.”
Hevener v. Reilly, supra,
There remains to be considered the extent of the new trial to be awarded. The wrongful death action and the survival action seek to enforce distinct causes of action.
Schwab
v.
P. J. Oesterling & Son, Inc.,
The issues of causal negligence and contributory negligence have also been litigated fully, and there is no reason for setting aside the jury’s finding that the negligence of defendant and plaintiff’s decedent contributed equally to the decedent’s death. The new trial in the survival action can fairly be limited to the issue of damages. Cf. Prince v. Adams, supra. The damages awarded by the jury can thereafter be reduced by the court in accordance with the prior comparative negligence findings.
The judgment in the wrongful death action is affirmed. The judgment in the survival action is reversed, and the action is remanded for a new trial on the issue of damages only.
Notes
. A blood test disclosed an alcoholic content in Gladfelter’s blood of 0.22%.
. This amount was reduced by the sum of $1,500 previously paid on account of funeral expenses, and the balance was reduced by 50% as required by the Comparative Negligence Act of April 28, 1978, P.L. 202, No. 53, § 10(89), as amended by Act of October 5, 1980, P.L. 693, No. 142, § 222(a), 42 Pa.C.S. § 7102. The molded verdict against defendant-appellee, therefore, was in the amount of $891.95.
. The Act of 1851 has been repealed by the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[279], 42 Pa.C.S. § 20002(a)[279], effective June 27, 1978. It has been re-enacted as a part of the Judicial Code of July 9, 1976, at 42 Pa.C.S. § 8301.
. This statute has been repealed, effective June 27, 1978, by the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[310], 42 Pa.C.S. § 20002(a)[310], It has been re-enacted as a part of the Judicial Code of July 9, 1976, at 42 Pa.C.S. § 8301.