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DAVIS v. HALDEMAN

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


April 26, 1957

James W. DAVIS, a Minor, by Sue G. Davis, his Guardian, and Sue G. Davis in her own right,
v.
Shaner C. HALDEMAN, Defendant and Third-Party Plaintiff, ralph W. Smith, Administrator c.t.a. of the Estate of George Maslin Davis, Deceased, Third-Party Defendant. James W. DAVIS. a Minor, by Sue G. Davis, bis guardian, and Sue G. Davis in her own right v. Ralph W. SMITH, Administrator c.t.a. of the Estate of George Maslin Davis, Deceased, Defendant and Third-Party Plaintiff, Shaner C. Haldeman, Third-Party Defendant

The opinion of the court was delivered by: DUSEN

These cases come before the court on post-trial motions filed in these actions, arising out of a 'head-on' collision between a truck and a car, after the trial judge's entry of a directed verdict for defendant in Civil Action No. 16,901 *fn1" and verdicts for the plaintiff and the third-party defendant in Civil Action No. 16,960.

I. Plaintiff's Motion For a New Trial in Civil Action No. 16,901.

 The only liability evidence consisted of the testimony of two state police officers, who arrived about 15 minutes after the occurrence of the accident at about 9 a.m. on a clear, June day, and pictures taken sometime after the arrival of police officers, as well as a stipulation that the truck driven by defendant was 7' 11' wide at its widest point (the rear of the truck) and that it carried a 27,000-pound load.

 A sedan car occupied by the minor plaintiff was proceeding in a northerly direction along an 18' 8' wide road, with berms of 3' 1 1/2' on each side, toward a curve to the right at the crest of the hill. Defendant was proceeding in his truck in a southerly direction up a grade toward the curve which was to his left at the crest of the hill. State police officers testified that a skidmark extended for a distance of 40' 2' from a point less than a foot east of the westernmost white line near the center *fn2" of the road in a westerly direction and then in a southerly direction, ending up very near the westernmost berm of the road (P-1 and P-3). This skidmark indicated the route of the left, rear, double-tire wheel of the truck, which was far narrower at the cab than at the truck portion located behind the cab. The pictures indicate clearly that the truck was well over on its right side (west side) of the road long before the area on the west side of the road where the debris from the truck and car was located (see P-1a). *fn3"

 The trial judge found that no reasonable and well-balanced mind *fn4" could exclude the well-supported belief from the skidmark that the truck was on the west side of the road well before the point of collision, so that any negligence in the left rear wheel's having been on the right side of the road could not be a proximate cause of the accident. *fn5" This belief is at least as equally well-supported as the theory of defendant that the original position of the truck's left rear wheel at the beginning of the skidmark, inches to the east of the westernmost white line, was a proximate cause of the accident. See Flowers v. Dolan, 1944, 155 Pa.Super. 378, 38 A.2d 429, and Satovich v. Lee, 1956, 385 Pa. 133, 122 A.2d 212; cf. Bloom v. Bailey, 1928, 292 Pa. 348, 141 A. 150, 57 A.L.R. 585. *fn6"

 The Pennsylvania Supreme Court has held that even though the defendant's car is on the wrong side of the road at the time of impact, this does not prevent the direction of a verdict for the defendant where the evidence does not disclose a lack of due care on the part of the defendant. See Richardson v. Patterson, 1951, 368 Pa. 495, 84 A.2d 342. A long line of Pennsylvania cases requires the conclusion that plaintiff has not satisfied the burden which rests upon him when he produces only circumstantial evidence of the type offered at this trial. See Richardson v. Patterson, supra, Satovich v. Lee, supra, and Kozemschak v. Garner, 1948, 163 Pa.Super. 328, 331, 61 A.2d 375.

  Order in Civil Action No. 16,901.

 And Now, April 26, 1957, It Is Ordered that plaintiff's motion for new trial filed December 19, 1956, is denied.

 II. Defendant's Motion for New Trial and Judgment N.O.V. in Civil Action No. 16,960.

 There was sufficient evidence in this case for the jury to find that defendant's decedent came around the curve on the wrong side of the road *fn7" without looking for vehicles proceeding in a southerly direction toward him and crashed into Haldeman's truck without even applying his brakes. It is noted that in this case all the debris was on the western part of the road, whereas in Satovich v. Lee, 1956, 385 Pa. 133, 122 A.2d 212, relied on by defendant, the debris was 'on both sides of the line' at page 213 of 122 A.2d. Under these circumstances, defendant's motion for judgment n.o.v. is denied. Cf. opinion filed 3/21/57 by Chief Judge Kirkpatrick in Spiegel v. Ferraro, D.C., 151 F.Supp. 281.

 The trial judge has carefully considered the reasons in support of the motion for new trial, as stated in the motion and in defendant's able brief, but finds that they do not justify the grant of a new trial in this case. *fn8" The verdict is amply supported by the extensive and well-qualified testimony on damages carefully and clearly presented on plaintiff's behalf in this case.

 In view of defendant's objection to the use of the blackboard by plaintiff's counsel in his closing speech to summarize the testimony concerning future loss of earnings, the trial judge had a picture taken of the blackboard on the day of its use and this picture is being attached to this opinion for consideration by the appellate court. The basic $ 5,000 annual loss of earnings figure used was supported by the evidence. *fn9" The trial judge emphasized to the jury that the jury had to determine whether they would accept this figure which was being used by counsel for plaintiff as part of his argument *fn10" and whether there would be a loss of future earnings (N.T. 609-12), using, inter alia, this language in the charge at page 612:

 '* * * if you find that he can get through college and that he will make a good recovery, then you may find that there is no loss. That is entirely up to you.'

 The case of Warren Petroleum Corporation v. Pyeatt, Tex.Civ.App.1955, 275 S.W.2d 216, relied on by defendant, involved the use of material on a chart which had no basis in the evidence *fn11" and, hence, is distinguishable. The same Texas court has held that the blackboard may be used where the figures are based on 'admitted testimony.' See Kimbell v. Noel, Tex.Civ.App.1950, 228 S.W.2d 980, 983.

 The blackboard was removed from the view of the jury as soon as plaintiff's counsel had concluded his argument. If counsel intend to use a blackboard or chart, it is proper practice to require such counsel to present to the trial judge in chambers, or at sidebar, the exact material to be placed before the jury in this way so that any objections and rulings thereon can be made. Although this was not done in this case, defendant's counsel has made no showing that there was anything placed on the blackboard which was not based on uncontradicted evidence or that there was anything prejudicial put upon it, except the $ 225,000 figure which was marked with an 'X' at the trial judge's suggestion. *fn12"

 III. Third-Party Plaintiff's Motion for New Trial in Civil Action No. 16,960.

 This third-party claim was tried to a jury on the issue of liability, only, after the first trial. *fn13" The trial judge has carefully considered third-party plaintiff's reasons in support of his motion for a new trial and finds that the refusal of the motion would not be inconsistent with substantial justice. *fn14" Cf. F.R.Civ.P. 61.

 Order in Civil Action No. 16,960.

 And Now, April 26, 1957, It Is Ordered that defendant's motion for new trial and judgment n.o.v. filed December 22, 1956, as supplemented by additional reasons filed March 25, 1957, and third-party plaintiff's motion for new trial filed March 20, 1957, are denied.


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