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September 17, 1969

John J. HADDIGAN, Administrator of the Estate of Margaret M. Haddigan, Deceased
Cornelius J. HARKINS, Defendant and Third-Party Plaintiff and William Thomas Baker, Defendant, v. Thomas W. HADDIGAN, Third-Party Defendant

The opinion of the court was delivered by: DAVIS

 This diversity action arose out of a three-car collision on January 5, 1963, on U.S. Route 1 at the entrance to the Pennsylvania Turnpike north of Street Road near Philadelphia. At this point U.S. Route 1 consists of four lanes, two each way, separated by a concrete medial strip. Each lane is 10 feet wide. At the time of the accident (approximately 6:10 P.M.), the road was dry and it was dark. Three principal claims for damages were instituted; a wrongful death and survival action by the administrator of the Estate of Margaret M. Haddigan, deceased; and action for personal injuries and property damage by Thomas Haddigan; and an action for personal injuries which Cornelius Harkins sustained. Numerous cross-claims for contribution were also filed by the defendants and third party defendants. On January 24, 1968, a verdict was returned by the jury, in response to special interrogatories. The Court ordered the entry of judgment essentially in favor of the administrator of the Estate of Margaret Haddigan, and against all other parties.

 In reviewing the allegations of error, we are of course required to consider the evidence presented at trial (together with all reasonable inferences to be derived therefrom) in a light most favorable to the successful party. Morris Bros. Lumber Co. v. Eakin, 262 F.2d 259 (3rd Cir. 1959); Frankel v. Willow Brook Marina, Inc., 275 F. Supp. 320 (E.D.Pa.1967).

 This was corroborated in part by the witness Hart who was also proceeding in a southerly direction, behind the Haddigan auto. Hart observed "* * * sparks coming from underneath the [Haddigan] car, like something was rubbing on the road apparently" (N.T. p. 253). He also observed the path which the Haddigan auto had ultimately taken, although it was not too clear whether he actually observed the collision which immediately followed.

 It is undisputed that the Harkins auto (which was proceeding in the left or passing northbound lane) struck the Haddigan auto. Mrs. Haddigan was thrown from the car by the impact. There was some question whether the Baker auto then struck the Haddigan auto. However, Mr. Baker himself testified that his auto ran over Mrs. Haddigan who by this time, was lying on the road (N.T. p. 1010). The Baker auto had been travelling in the right-most northbound lane. The Baker auto had to be lifted in order to extricate Mrs. Haddigan's body. (N.T. p. 830-832; 837-839). She expired at 6:40 P.M. (N.T. p. 55) or about 30 minutes after the accident.

 The principal theory of liability which the plaintiff asserted was essentially that both Harkins and Baker were negligent in failing to either slow or stop their vehicles, or otherwise avoid an "obvious peril" which had been visible for at least 100 yards. We shall now examine the various allegations of error.


 Initially, the driver Harkins contends that the finding of negligence on his part and that such negligence was the proximate cause of the decedent's death, was against the weight of the evidence. In his brief, he further contends that any finding of negligence could only result from conjecture and speculation since there was no credible evidence of this type presented to the jury.

 Recognizing that credibility of witnesses and their testimony is properly the prerogative of the jury, we need only note that the collective testimony of Mr. Haddigan, taken in conjunction with that of Mr. Hart provided the jury with an ample basis for finding that the Haddigan auto was inextricably located in the oncoming traffic lanes, through no negligence on the part of Haddigan, and that the Harkins auto was proceeding at a rate of speed in excess of the "assured clear distance" rule *fn1" or otherwise without the exercise of reasonable care to avoid an accident.

 Pitted against this evidence was principally the testimony of Harkins himself, who essentially contended that the Haddigan auto was upon him so quickly that he was unable to avoid a collision. However, Harkins' testimony was of questionable validity, since by his own admission his recollection of the details of the accident was rather limited. See N.T. p. 854. *fn2"


 It is contended that the finding of damages in the survival action in the amount of $7,500 was unsupported by the evidence and grossly excessive. The defendant Harkins correctly observed that the decedent would be entitled to damages for past and future earnings, medical bills and pain and suffering, citing Smith v. Allegheny County, 377 Pa. 365, 105 A.2d 137 (1954).

 Suffice to say that the evidence adduced regarding the pain and suffering which the decedent experienced was legally sufficient to sustain the $7,500 amount awarded. The witness Solis-Cohen for example, who was one of the first persons on the scene testified that:

* * * there was a body of a woman adjacent to the front bumper and roughly parallel to it lying on the highway.
* * *
I bent down and looked at the woman and she was semi-conscious; she was moaning. There was [sic] sounds coming from her. N.T. p. 831.
* * *
Q. And you said you heard her moaning and groaning when you looked at her?
A. Yes, I did; constantly. (N.T. p. 838-839.

 See also N.T. p. 128 and P. Ex. 1).

 The damages cannot be regarded as excessive as a matter of law, so as to require either remittitur or a new trial. See Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 89 S. Ct. 331, 21 L. Ed. 2d 309 (1968).


 Similarly, the award of $64,754.30 in the Wrongful Death Action cannot be regarded as excessive. It is contended that the Court erred in permitting the witness Rosner to testify ...

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