The opinion of the court was delivered by: KNOX
On the evening of November 3, 1967, the decedent, Thomas Andrzejczak, and others traveled from their homes in Erie to Westfield, Chautauqua County, New York, and visited several taverns in the area including Anthony's Bar. At the end of the evening, Thomas Andrzejczak obtained a ride back to Pennsylvania, got out of the automobile on Interstate 90, a heavily-traveled expressway, near the exit to Pennsylvania Route 97 in Erie County, Pennsylvania, where he was struck by an unidentified vehicle and killed. It was alleged that the decedent's death was the result of having been served alcoholic beverages at Anthony's Bar while in a visibly intoxicated condition.
The jury returned a verdict in favor of the defendant and against the plaintiff. The plaintiff is presently before this court with a Motion for New Trial.
Plaintiff's basic complaint is that the jury found against her, but this we cannot help. Plaintiff also complains that the closing argument of defense counsel was improper. The plaintiff having presented neither transcript nor case law in support of this contention, the court must reject such argument. Counsel for plaintiff has submitted an affidavit to the effect that his conversation with several jurors indicated that a basis of their verdict was a belief that decedent had consumed additional alcoholic beverages during the ride back to Erie. The law is quite clear that affidavits of jurors are not admissible to impeach their verdict in the absence of extraneous influence upon them. McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed. 1300 (1915); International Forwarding Co. v. Bison Freightways, Inc., 316 F. Supp. 464 (M.D. Pa. 1970); York Chrysler-Plymouth, Inc. v. Chrysler Credit Corp., 447 F.2d 786 (5th Cir. 1971). Furthermore plaintiff made no objection at trial to the closing argument now complained of. Clearly the failure to so object acts as a waiver of the right later to raise the issue: United States v. Chicarelli, 445 F.2d 1111 (3rd Cir. 1971).
The final argument advanced by plaintiff in support of Motion for New Trial is that defense counsel made repeated objections to the plaintiff's closing argument thus giving the jury the erroneous impression that the plaintiff's counsel was arguing improperly, and therefore prejudiced the jury against the plaintiff's case. While the court has been furnished with a small excerpt of plaintiff's summation, the defendant's objections therein pertaining to plaintiff's repeated assurances to jury that they were not sitting in a criminal prosecution were not so grossly improper as to prejudice plaintiff's case. The court in its discretion overruled these objections. Were every objection raised interpreted as prejudice to the opposing party's case, courtroom litigation must surely be ended. As a matter of fact, the record shows the court admonished defense counsel to cease and refused to permit any further objections. This altercation, if anything, would redound to plaintiff's benefit since the jury would be left with the impression that defense counsel was out of order.
The plaintiff's Motion for New Trial must ...