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
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.
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.
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
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
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.
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.
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.
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.