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GORDON v. TROVATO (04/22/75)

decided: April 22, 1975.

GORDON
v.
TROVATO, APPELLANT



Appeal from order of Court of Common Pleas of Somerset County, No. 859 of 1971, in case of Robert J. Gordon v. Charlotte Trovato.

COUNSEL

Frank A. Orban, Jr., for appellant.

William F. Patterson, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 234 Pa. Super. Page 281]

The appellant, Charlotte Trovato, has filed this appeal from an Order of the Court of Common Pleas of Somerset County, Civil Division, entered March 14, 1974, denying appellant's motion for a new trial.

The case stems from a traffic accident which occurred in Windber Borough, Somerset County, on or about August 16, 1969. Involved is a trespass action for appellee's personal injuries arising out of a collision between his motorcycle and appellant's automobile. Appellee was travelling west on Jefferson Avenue, a through street in Windber. Appellant was proceeding south on 11th Street which intersects with Jefferson, where appellant had a stop sign. According to appellee's testimony, he was travelling within the speed limits on his own side of the road, when he saw appellant approaching the 11th Street intersection on his right. Appellant then stopped at the stop sign. When appellee was forty (40) feet away from the intersection, appellant pulled in front of him, allowing him neither space nor time to avoid the collision. The jury returned a verdict for the appellee in the amount of $15,000. A motion for new trial was refused by the court en banc on March 14, 1974, and on March 27, 1974, the lower court refused appellant's motion for reargument.

Appellant contends that the court erred in submitting the question of appellee's wage loss to the jury. Appellant also argues that the court erred in refusing to

[ 234 Pa. Super. Page 282]

    grant a new trial based on the sufficiency of appellee's evidence. We agree with appellant's first contention only and grant a new trial for the purpose of determining damages.

The plaintiff has the duty and burden to establish by proper testimony the damages which he claims to have sustained, and if he fails to meet this burden, the question of damages cannot be submitted to the jury. Link v. Highway Express Lines, Inc., 444 Pa. 447, 282 A.2d 727 (1971). The amount and items of pecuniary damage cannot be presumed but must be proved by the establishment of facts. Maxwell v. Schaefer, 381 Pa. 13, 112 A.2d 69 (1955); Certified Laboratories of Texas, Inc. v. Rubinson, 303 F. Supp. 1014 (E.D. Pa. 1969). It is the burden of the plaintiff to establish by evidence such facts as will furnish a basis for the legal assessment of damages according to some definite and legal rule. Magar v. Lifetime, Inc., 187 Pa. Superior Ct. 143, 144 A.2d 747 (1958).

Appellee worked at the Bethlehem Steel Corporation mill located in Johnstown, Pennsylvania, as a laborer, chainman or drill helper. From the date of the accident until March 25, 1970, appellee could perform no work, according to his doctor's testimony, but from that date forward the doctor permitted the appellee to do light work. There was no job for appellee in his particular division at the time he was released for light work by his doctor. However, appellee made no attempt to ascertain if there was a similar job available in one of the other units in Bethlehem's Johnstown mill. Also, there was no indication that the appellee attempted to secure employment outside of Bethlehem Steel during this period, although he could have done that under the rules and regulations of Bethlehem Steel without jeopardizing his regular job with the company. According to the testimony, appellee did not work from August 16, 1969, to February 22, 1971, due to the accident.

[ 234 Pa. Super. Page 283]

Appellee's testimony concerning his rate of pay was limited to the following:

"Q. Where were you employed?

A. Bethlehem Steel Corporation, Johnstown.

Q. What did you do there? What was your job?

A. Laborer -- just about everything they had a job for you. I started out in the car shop.

Q. And what was your job when you returned?

A. Laborer." (NT 23a-24a)

Mr. Gordon further testified:

"Q. Bob, when you were employed prior to the accident, what was your job? What did you do?

A. At the time of the accident I was a ...


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