231 Pa. Super. 199 | Pa. Super. Ct. | 1974
Opinion by
This case arises from an accident in which appellee, Jean Simmons, a minor, was hit by an automobile driven by appellant, Geraldine Mullen. Originally there were several defendants but the jury returned a verdict only against appellant. The verdict was $25,-000 for appellee, and $549.60 for her father, to cover medical expenses. The issues are whether there was error in the charge, whether expert testimony was erroneously admitted, and whether the verdict was excessive.
The accident occurred on Pioneer Avenue in Pittsburgh at approximately 3:15 p.m. Pioneer Avenue runs north and south and has four lanes and abutting sidewalks. Appellee, aged seven years and seven months, was returning home from St. Pius Grade School. She was walking north from the school on the east sidewalk of Pioneer Avenue. A number of children were on both sides of the street. An open trench stretched across the sidewalk to the center of the street. Backhoe equipment blocked the sidewalk. Dirt from the excavation was in a pile, variously described by witnesses as three to six feet high, which extended from the east sidewalk to the center of the street. When appellee reached the excavation, she left the sidewalk and ran across the street toward the west sidewalk. She was within a foot or two of the opposite curb when
Appellant, who resided in the general area, had driven through this section of Pioneer Avenue on other days at this time to attend her scheduled classes at Allegheny Community College. On those occasions she had observed school children on both sides of the street, but the sidewalk and street had not been blocked. Appellant testified that on the day of the accident she could not have been driving more than 15 miles per hour because she knew the area was a school zone. She explained further that she waited in front of the dirt pile to let some oncoming cars turn around her. She said she then proceeded forward at about 10 miles per hour and saw children on the right (west) sidewalk but not on the left side. Cross-examination revealed that she never looked to the left as she passed the dirt pile and therefore did not see appellee until appellee was directly in front of her right headlight.
The collision knocked appellee into the air and she landed unconscious. She was placed under the care of Dr. Gray and his associates at Mercy Hospital where she remained for five days. The diagnosis was “cerebral concussion and multiple contusions and abrasions.” An electroencephalogram administered on June 10, 1970, was abnormal, but a repeat test in November registered a normal response. Dr. Gray found no demonstrable organic abnormalities thereafter. Continued complaints by appellee and her family, including alleged emotional changes, caused Dr. Gray to recommend psychological evaluation, and he referred appellee to Eobert Eomano, Ph.D., a clinical psychologist who, after conducting several interviews and a variety of psychometric tests, concluded that appellee had suffered minimal organic brain damage.
Appellant claims that the trial court erred in its charge to the jury. The contested portion of the charge is as follows: “There is also a rule of law that normally Avhen a pedestrian is crossing between intersections, as crossing a street in the middle of a block, it must be shown that the pedestrian was in the highway and visible to the driver of an automobile for a sufficient length of time and far enough aAvay so that the driver is able to bring his vehicle under control or to take other action to avoid striking the pedestrian. However, in the instant case, this rule is modified as to whether or not the surrounding eireumstances of this case, the children coming home from school, the barricade on the highway should have apprised the driver, Defendant Mullen, on notice of possible pedestrians, i.e., children, darting into the street, and whether Defendant Mullen had her car under control as to meet the conditions of this particular street at this particular time. (Emphasis added.) Specifically, appellant argues that the charge was an incorrect statement of law because it placed on her the duty to anticipate children darting into the street. She submits that the charge should have been that an operator of a car is not responsible if a child suddenly runs from a place of safety into the path of the vehicle.
In some circumstances this claim would be correct. However, a driver’s “duty is governed entirely by the circumstances” of the particular case. Purdy v. Hazeltine, 321 Pa. 459, 461, 184 A. 660, 661 (1936). Ordinarily an automobile driver is only negligent if the evidence shows that the child was on the highway and visible for a sufficient period of time to give the driver a reasonable opportunity to see him and to avoid an accident. Flagiello v. Crilly, 409 Pa. 389, 187 A. 2d 289 (1963); Lucas v. Bushko, 314 Pa. 310, 171 A. 460
Here, appellant was proceeding through an elementary school zone when school was dismissed. She knew that school was dismissed at this time and that when it was, children used both sides of the street, and she saw that children were in fact present. Moreover, she had noticed that the east sidewalk was blocked by construction equipment and the pile of dirt. The law has recognized that special care is required for the protection of children who congregate in the vicinity of a schoolhouse. Stevenson v. Sarfert, 310 Pa. 458, 165 A. 225 (1933); Mulhern v. Phila. Homemade Bread Co., 257 Pa. 22, 101 A. 74 (1917). The tendency of small children to dart across streets near schools cannot be ignored by drivers. Rankin v. Ward Baking Co., 272 Pa. 108, 116 A. 58 (1922). Further, the obstructions here meant that the children had reason to leave the sidewalk and that appellant’s scope of vision must have been limited. These circumstances should have warned appellant to expect heedless acts of children, and it thereby became her duty to exercise a higher degree of care than under ordinary circumstances.
In Robb v. Miller, 372 Pa. 505, 94 A. 2d 734 (1953), a five year old boy ran into the street in front of his school from between two parked cars. The defendant’s
II
Appellant next contends that the trial court abused its discretion in allowing the depositions of the two expert witnesses, George H. Gray, M.D., and Robert Romano, Ph.D., to be read to the jury.
As mentioned initially, Dr. Gray treated appellee for temporary injuries including a concussion and multiple abrasions, but testified that when he could find no evidence of permanent “organic abnormalities,” he recommended a psychological evaluation and referred appellee to Dr. Eomano, a clinical psychologist. Dr. Eomano testified as follows: He interviewed appellee and her mother and had his assistant administer a battery of tests to ascertain whether there was either emotional or organic malfunction. He also said that from the results of the interview and the tests he concluded that appellee was somewhat disturbed and that there was some erratic intellectual functioning. These problems were, in his opinion, due in part to emotional pressure from adults and in part to minimal organic brain damage. By “organic brain damage”, Dr. Eomano explained that he meant that something was “amiss in the child’s central nervous system . . . in the way she perceives and responds to her perceptions.” This would in turn cause her to have difficulty in learning to read and with verbal conception. He felt visual retraining would be helpful. Dr. Eomano candidly admitted that his conclusions were based on “mixed and equivocal data.” Dr. Gray accepted Dr. Eomano’s opinion as accurate and attributed appellee’s injuries to the accident. During his deposition, when questioned initially by appellee’s counsel, Dr. Eomano did not testify on the causal relationship between the brain damage and the accident. However, on cross-examination he was asked by appellant’s counsel whether he could with “medcial certainty in the field
A.
The first issue is whether Dr. Romano was competent to testify as an expert on organic brain malfunctions.
Preliminarily, it is clear that Dr. Romano was an eminently qualified psychologist. He received a Bachelor’s degree from Cornell University in 1947, a Master’s degree from the University of Missouri in 1951, and his Ph.D. in clinical psychology from Washington
An expert witness is one who due to the “possession of knowledge not within ordinary reach is specially qualified to speak upon the subject to which his attention is called.” Steele v. Shepperd, 411 Pa. 481, 483-484, 192 A. 2d 397, 398 (1963), quoting Struthers v. The Phila. & Del. Co. R. Co., 174 Pa. 291, 298, 34 A. 443 (1896).
When dealing with the brain, consultation with non-medical practitioners may be not only desirable but necessary. Dr. Gray so indicated at the trial: “Q. Doctor, I wonder if you would explain for the Court and Jury the relationship of a clinical psychologist to
Dr. Romano’s testimony that appellee had minimal brain damage did not have to be excluded merely because it was based on “equivocal and mixed data.” It is true that testimony based on data so scanty that the witness’s inferences are mere guesses should not be admitted. II Wigmore, Evidence §658 (3d ed. 1940). This does not mean, however, that a witness’s statement of opinion has to be positive or absolutely certain. “[I]t suffices if [the witness] had an opportunity of personal observation and did get some impressions from this observation.” Id. “The law does not require that . . . [expert] testimony amount to dogma or that it foreclose the exercise by the jury of its function to determine the ultimate fact.” Brett v. J. M. Carras, Inc., 203 F. 2d 451, 453 (3d Cir. 1953). The reason for this rule is that if a source of knowledge is insufficient, its weakness may be exhibited to the jury, which can then determine for itself how much weight to accord the testimony. Wigmore §659.
Here Dr. Romano admitted that his opinion was not certain. He, however, carefully explained the testing procedure, the tests used, and how the test results were interpreted. This gave the jury ample opportunity to analyze his methodology and to assess its value. The equivocal nature of the data therefore was not grounds for exclusion, but only a factor to be considered in evaluating his testimony.
Appellant next contends that even if it was not error to allow Dr. Romano to testify on the existence of brain damage, it was error to allow him to testify that the damage was caused by the accident. She argues among other things that only physicians can determine causation. We agree that Dr. Romano’s testimony on causation was improper. His testimony on the existence of brain damage was preceded by explanation of why the clinical psychologist was peculiarly able to detect defects that a neurosurgeon could not. His methods were fully examined. Nowhere in the record, however, is there any indication that these methods expose anything more than the mere existence of defects. Perhaps a psychologist is able to ascertain causation, but the record does not support this conclusion. This error, however, does not warrant a new trial, for it was harmless.
First, expert testimony did not appear to be necessary to show causation. Clearly, a plaintiff has the burden of establishing that his injuries were proximately caused by the defendant’s negligence. Medical testimony, however, is not always necessary to make the causal link. In Tabuteau v. London G. & A. Co., Ltd., 351 Pa. 183, 40 A. 2d 396 (1945), the plaintiff tripped on an uneven sidewalk and suffered immediate pain in his groin. Medical examination revealed a hernia. The court held that expert testimony Avas not required to show proximate cause since the injury was so “immediately and directly, or naturally and probably,” the result of the accident. Id. at 186, 40 A. 2d at 398. Only when the cause of the injury is not readily apparent is there a need for medical testimony. Washko v. Ruckno, Inc., 180 Pa. Superior Ct. 606, 121 A. 2d 456 (1956). Here, appellee was hit on the head in the accident, as evidenced by the bruise on her
Second, assuming that expert testimony was necessary to show causation, Dr. Gray’s testimony was enough: “Q. And again, Doctor, is Dr. Romano capable based on his test and his training as far as you are concerned to make this type of a psychological diagnosis of the child? A. In my opinion, he is. Q. And as a medical doctor and a specialist in neurosurgery, do you accept his conclusion based on these psychological tests that this child does have minimal brain damage? A. 1 do. Q. Now, Doctor, based on the history of the accident which you received, and the condition of this child as was evidenced from her admission in Mercy Hospital, and her subsequent course of visits with you, do you have an opinion with reasonable medical certainty as to the cause of the neurological conditions which you and your service treated? A. Yes. Assuming that the history we have received is correct, it is our opinion that the findings which the child showed at the time we saw her, and while under our treatment, was related to the accident described in the history.”
Third, Dr. Romano was not asked for his opinion on causation on direct examination but on cross. TU« answers on re-direct were merely to clarify the answers provided on cross. Appellant cannot now come before this court and seek a new trial for testimony initiated by her own counsel.
D.
Finally, appellant claims that all the expert testimony should have been excluded because it was contradictory. Contradiction among a party’s experts is only fatal, however, if there are absolute conflicts in
Ill
Appellant’s last contention is that the damage award of $25,000 was excessive.
The determination of damages is initially within the discretion of the jury, for it is the jury’s task to weigh the evidence and assess credibility. The granting or refusal of a new trial because of an excessive jury verdict is, in turn, within the discretion of the court below and should not be disturbed absent clear abuse. Guzman v. Bloom, 413 Pa. 576, 198 A. 2d 499 (1964) ; Hall v. George, 403 Pa. 563, 170 A. 2d 367 (1961). Accordingly, an appellate court should be exceedingly reluctant to interfere with a verdict found by the lower court not to be excessive. Skoda v. West Penn Power Co., 411 Pa. 323, 191 A. 2d 822 (1963). Thus we have said that we shall not find a verdict excessive unless it is so grossly excessive that it shocks our sense of justice. Fallon v. Penn Central Transp. Co., 444 Pa. 148, 279 A. 2d 164 (1971); Flank v. Walker, 398 Pa. 166, 157 A. 2d 163 (1960); DeSimone v. Philadelphia, 380 Pa. 137, 110 A. 2d 431 (1955).
Nevertheless, the fact of disparity between the amount of out-of-pocket expenses and the amount of the verdict is not by itself sufficient basis to award a new trial. Murphy v. Taylor, 440 Pa. 186, 269 A. 2d 486 (1970); Zawoyski v. Pittsburgh Rwys. Co., 415 Pa. 563, 204 A. 2d 463 (1964). Every aspect of the case must be examined. When this is done, there is enough in the record to persuade us that the jury was not acting vindictively or irrationally or out of undue sympathy for appellee, and that we should not disturb its verdict, even though it might not have been the verdict we should have reached.
As has been noted, appellee was knocked unconscious by appellant’s car, and did not regain consciousness until she arrived at the hospital, where her injuries were diagnosed as cerebral concussion and multiple contusions and abrasions. Appellee’s mother testified that she noticed behavioral changes in appellee at home after the accident. Unnecessary crying and anxiety become commonplace, especially if another
Taking all these facts together, an award of $25,-000 does not seem unreasonable. No doubt the jury could have rejected the mother’s testimony, as well as the doctors’, or could have regarded it as exaggerated or unduly anxious. It is apparent from the verdict, hoAvever, that the jury accepted the testimony of appellee’s witnesses in full. That was within the jury’s power. Having decided to accept the testimony, the jury must have found itself presented with a troublesome decision. Appellee is very young, and her injury is, in a sense, invisible, and its future manifestations difficult to predict. The jury could have concluded that the edge of a bright and sharp personality has been permanently dulled. In these circumstances we cannot say that the verdict, and the approval of the verdict by the court below, shock our conscience.
Affirmed.
All of the expert testimony was presented by depositions read at trial.
Clinical psychologists have been acknowledged as experts qualified to testify on diagnosis, prognosis, and causation of emotional disturbance. United States v. Riggleman, 411 F. 2d 1190 (4th Cir. 1969) ; Saul v. State, 6 Md. App. 540, 252 A. 2d 282 (1969) ; Reese v. Naylor, 222 So. 2d 487 (Fla. App. 1969).
Accord: McCormick on Evidence, §13, pp. 28-29 (2d ed.) : “To warrant the use of expert testimony . . . two elements are required. First, the subject of the inference must be so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman. . . . second, the witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.” Proposed Federal Rule 702 also adopts these criteria.
The General Assembly, too, has recognized that certain brain abnormalities, particularly mental retardation, require determination by psychological rather than medical examination. Pennsylvania Mental Health Act of October 20, 1966, P. L. 96, Art. IV, §404, 50 P.S. §4404
It should further be noted that the neurosurgeon, Dr. Gray, was willing to accept the opinion even though it was based on mixed facts.
Dr. Gray’s bill was $105.00, Dr. Romano’s $150.00, and Mercy Hospital’s $294.60.