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POLTORAK v. SANDY (09/22/75)

decided: September 22, 1975.

POLTORAK, ET UX., APPELLANTS, ET AL.
v.
SANDY



Appeal from judgment of Court of Common Pleas of Bucks County, Jan. T., 1968, No. 1088, in case of Frank S. Poltorak and Marion E. Poltorak, his wife, and Bernard B. Barron, Jr., a minor by Bernard B. Barron, Sr., his parent and natural guardian, and Bernard B. Barron, Sr., in his own right, and Frank J. Poltorak, Jr., a minor and Diane Poltorak, a minor, by Frank J. Poltorak, Sr., their parent and natural guardian, and Frank J. Poltorak, Sr., in his own right v. William P. Sandy, Jr. and Frank S. Poltorak, additional defendant.

COUNSEL

Harold B. Vikoren, for appellants.

Richard P. McBride, with him William B. Moyer, and Power, Bowen & Valimont, for appellee.

George M. Bush, for additional defendant, Frank S. Poltorak, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Hoffman, J. Cercone, J., joins in this dissenting opinion. Dissenting Opinion by Spaeth, J.

Author: Van Der Voort

[ 236 Pa. Super. Page 358]

On the evening of December 24, 1966, Frank S. Poltorak and his wife Marion, their son Frank J. Poltorak, Sr. and his wife Carol, son Frank J., Jr. and daughter Diane, and the Frank S. Poltoraks' grandson Bernard B. Barron, Jr., were all bound for the Frank S. Poltoraks' home in Churchville, Pennsylvania, and a Christmas Eve dinner. With Frank S. Poltorak at the wheel of his 1966 Ford Galaxie, the party was proceeding north along York Road in Warminster, Bucks County, in the midst of a heavy snowstorm. Marion Poltorak was seated in the front seat next to the door with Bernard in her lap; Frank J., Jr. was seated between Frank S. and Marion Poltorak. Snow had been falling throughout the day, and the wind had piled the snow in banks approximately two feet high along the edges of the road and in the center over a "singing" medial strip.

As the Poltorak car was proceeding north on York Road, a 1965 Fiat, driven by William P. Sandy, Jr. and containing his pregnant wife Rita, was proceeding south on York Road. The Fiat was equipped with a windshield defroster that had only one center vent to clear the entire windshield; consequently, Mr. Sandy was obliged to carry a rag in the car for the purpose of assisting the defroster in clearing the outer areas of the windshield. As the Fiat approached the intersection of York Road and Fourth Street, William Sandy and his wife were both busily engaged in wiping the windshield. Though Mr. Sandy was apparently traveling at a speed of only 15-20 miles per hour, because of the blowing snow and also possibly due to the fact that he was devoting some attention to cleaning the windshield, Mr. Sandy failed to see an object in the intersection ahead of him until it was too late to avoid striking it. The object turned out to be the automobile being driven by Frank S. Poltorak.

Although the snow covered the medial strip in the center of York Road, apparently there was a sufficient

[ 236 Pa. Super. Page 359]

    break in the area of the intersection to allow the Poltorak car to turn left from York Road onto Fourth Street. As the Poltorak car made the turn and crossed the center of the highway, the car stalled. Restarted, the car (which had an automatic transmission) moved ahead only a few feet -- sufficient to block the southbound lane of York Road -- before the car stalled again. At this point, after Mr. Poltorak had turned off the heater-defroster and the radio, and was reaching for the key in the ignition to attempt to restart the engine, the car was struck on the right side by the automobile being driven by William Sandy.

Frank Poltorak, his wife Marion, and the three minor children who occupied the Poltorak car at the time of the accident, brought suit against William P. Sandy, Jr.; the latter joined Frank S. Poltorak as an additional defendant. After a trial which lasted from September 20 to September 27, 1971, the jury returned a verdict of $800 against William P. Sandy and Frank S. Poltorak in favor of the three minor children, and a verdict of $15,000 against the same Mr. Sandy and Frank S. Poltorak in favor of Marion E. Poltorak. The case is before us on the appeal of plaintiffs Frank S. Poltorak and Marion E. Poltorak.

Appellants first allege that the evidence presented at trial was not sufficient to support a finding that Frank S. Poltorak was contributorily negligent in causing the accident. A review of the record reveals testimony from which the jury could have concluded that Mr. Poltorak was negligent in not using due care in crossing the highway or in taking too much time to restart the engine and move his car into a position of safety. Although the evidence was not uncontradicted, the jury could justifiably have determined that Mr. Poltorak was negligent in making a very sharp turn over a ridge of snow, across a lane of traffic, while traveling at a very low rate of speed (one or two miles per hour), at a time when visibility was extremely poor due to blowing snow. Testimony

[ 236 Pa. Super. Page 360]

    indicated that after the car had stalled once, Mr. Poltorak restarted the engine and was able to move the car only a few feet before it stalled again. After the car stalled the second time, Mr. Poltorak turned off the radio and heater before attempting to restart the car. The jury could have found that Mr. Poltorak was negligent in taking too much time to restart the engine after the car stalled the second time. We should not reverse in this case unless we find incontrovertible physical facts or other evidentiary circumstances of such weight as to convince us that an injustice has been done. Mapp v. Wombucker, 421 Pa. 383, 219 A.2d 681 (1966). Although there was conflicting testimony as to visibility and the condition of the road at the time of the accident, it is the function of the jury to reconcile conflicting testimony if possible and to resolve questions of credibility where reconciliation cannot be accomplished. Mapp, supra. We find that there was sufficient evidence presented at trial from which the jury could have concluded that Frank S. Poltorak was contributorily negligent in causing the accident, and we will not usurp the function of the jury.

Appellants further argue that even if Frank S. Poltorak were contributorily negligent, this negligence was not a proximate cause of the accident. The Restatement of Torts, 2d, § 465(1) states:

"The plaintiff's negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it.*fn1

[ 236 Pa. Super. Page 361]

There is no rule of law which might absolve Mr. Poltorak of negligence, and reasonable men could certainly have found that the negligent action of Mr. Poltorak which resulted in the car which he was driving being stalled so as to block a lane of traffic was a substantial factor in causing the accident. Since the lower court judge properly instructed the jury on the issue of proximate cause and contributory negligence, this Court will not say that as a matter of law the negligent conduct of Frank S. Poltorak was not a proximate cause of the accident.

Appellants argue that the lower court erred in refusing to admit into evidence certain bills for services rendered to Marion Poltorak by her personal physician, Dr. Andrew A. Doering. The bills, which totaled $946.08, were for visits made by Mrs. Poltorak for treatment of a variety of ailments, including asthmatic bronchitis, colds, acute diarrhea, and hives, as well as for her accident-related problems. Defendant's attorney objected to the admission of these bills because of the inability of Dr. Doering to specify which bills and which parts of bills were attributable to accident-related treatments. Plaintiffs' attorney asked the doctor on direct examination whether the latter could separate the bills or whether they were intertwined, and the doctor replied: "I am afraid they are intertwined and it would be one of my headaches on trying to figure this out." Our Supreme Court has said that plaintiffs must "individuate the injuries and damages . . . not with absolute exactitude, but at least with reasonable approximation, and . . . damages may not be based on a mere guess or speculation; the proof must be of a character to enable an intelligent separation of the damages caused by the negligence complained of from those otherwise sustained . . ." McGuire v. Hamler Coal Mining Co., 355 Pa. 160, 162-63, 49 A.2d 396, 397 (1946) (citations omitted). In the case before us, the trial judge did not abuse his discretion in refusing to admit into evidence bills for medical

[ 236 Pa. Super. Page 362]

    expenses when neither plaintiffs nor her physician could make a reasonable showing of which bills were for accident-related treatments and which were for unrelated treatments.

Appellants further allege that the trial judge erred in refusing to permit the admission into evidence of bills for certain physical therapy treatments which had been administered to Marion E. Poltorak. In pre-trial interrogatories, the defendant had asked for an itemization of all damages sustained as a result of the accident. Plaintiffs' attorney failed to include in his answer to the interrogatories a claim for continuing physical therapy treatments. At the time of the pre-trial conference, plaintiffs were required by the local rules of court to submit a written memorandum containing a specification of all damages for which a claim was being made. Although plaintiffs' memorandum did include a claim of $147 for physical therapy, no mention was made at this time either, of the fact that the therapy would continue. When an attempt was made at trial to introduce into evidence those bills for treatments which had been administered between the date of the pre-trial hearing and the start of the trial, defendant's attorney objected to the admission of those bills, and the objection was sustained. The bills which were excluded totaled $777. Inasmuch as Mr. Poltorak cannot recover on his claims -- due to the jury's finding that Mr. Poltorak was contributorily negligent -- it is unnecessary for us to decide the correctness of the ruling of the trial judge with respect to these particular bills.

Appellants' third allegation of trial error is that the lower court judge should not have admitted into evidence the employment record of Marion E. Poltorak through the testimony of a person who was not the actual custodian of the records at the time of trial. Mrs. Poltorak had been employed by Rosenau Brothers, Inc. of Philadelphia throughout 1966; during that year, prior to the

[ 236 Pa. Super. Page 363]

    accident on December 24, she had missed work a total of thirty-two days. Testimony regarding these absences came from an employee of Rosenau Brothers, Miss Evelyn Apt. Miss Apt testified that she had been the personnel director for Rosenau Brothers throughout 1966, and that the company's employment records, including Mrs. Poltorak's, had been under her control and supervision throughout that period. Approximately seven months prior to trial, Miss Apt's job had been formally discontinued and supervision of the records had been transferred to an Industrial Relations Manager, while Miss Apt assumed a different position with the company. Miss Apt testified at trial that she still had access to the records in question and that she was occasionally called upon for information which she would obtain from the records which had previously been in her custody. The Uniform Business Records as Evidence Act states: "A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission." Act of May 4, 1939, P.L. 42, 28 P.S. § 91b (emphasis added). It is apparent from the wording of the Act that the Legislature intended to grant the trial courts a certain amount of discretion in deciding whether or not to admit business records. Henderson v. Zubik, 390 Pa. 521, 136 A.2d 124 (1957). There has been no allegation made that the records in question were inaccurate -- no allegation that Mrs. Poltorak had not missed all the time which the records indicated she had missed; furthermore, although Miss Apt was not actually the "custodian" of the employment records, she had been the custodian of the records during the period of Mrs. Poltorak's employment

[ 236 Pa. Super. Page 364]

    and at the time of trial still had ready access to the records. We therefore find that Miss Apt was a "qualified witness" within the meaning of § 91b of the Uniform Business Records as Evidence Act and that ...


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