No. 197 April Term, 1977 No. 198 April Term, 1977 No. 199 April Term, 1977 No. 200 April Term, 1977, Appeals from the Judgments Entered on October 8, 1976 of the Court of Common Pleas of Westmoreland County, Civil Action-Law (Action in Trespass) at 138 July Term, 1973 (No. 200): No. 2968 of 1974 (No. 197); No. 2969 of 1974 (No. 199); and 3123 of 1974 (No. 198).
Avra N. Pershing, Jr., Greensburg, for appellants.
Joseph E. Breman, Irwin B. Wedner, and James A. Beinkemper, Sr., Pittsburgh, for appellees at Nos. 197, 198, and 199.
Joel A. Claster and J. Raymond Ambrose, Jr., New Kensington, for appellee at No. 200.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Cercone, J., files a concurring opinion. Van der Voort, J., did not participate in the consideration or decision of this case.
[ 252 Pa. Super. Page 208]
Appellants contend that the trial court erred (1) in refusing to grant a new trial because the verdict was against the weight of the evidence; (2) in permitting appellee to ask prejudicial questions concerning the absence of reflectors and lights and in charging the jury erroneously on their absence; (3) in using the term legal cause in its charge; and (4) in refusing to grant a new trial because the verdicts were
[ 252 Pa. Super. Page 209]
excessive. We agree with appellants' final contention with respect to one appellee, and, therefore, we reverse and remand for a new trial limited to the issue of damages for one appellee.
On October 28, 1972, at approximately 8 p. m., the four minor plaintiffs*fn1 met at the M. Roy Alter farm to participate in a hayride organized by the youth group of the Calvary United Presbyterian Church in Leechburg, Westmoreland County. The group consisted of approximately 17 young people and two adult chaperones. At about 8:30 p. m., the Calvary Church departed on its hayride. The young people were seated on the tractor drawn haywagon with their legs dangling over both the road and the berm sides. After a few miles, the tractor turned onto Garver's Ferry Road, a two lane, asphalt road in a semi-rural area. A few moments later a car, driven by Ronald E. Shaffer, Jr., approached the haywagon from the opposite direction. The Shaffer vehicle collided with the left front of the haywagon and the four plaintiffs herein suffered injuries as a result of the collision.
At trial, a number of witnesses testified and conflicting accounts of the accident evolved. The plaintiffs introduced into evidence several photographs taken at the scene of the accident on the night it occurred. The first police officer to arrive at the scene testified that both vehicles were damaged in the left front. He stated that he measured the width of the road bed at the scene and that it was 16 feet wide. He measured the width of the wagon and found it to be 8 feet. He also stated that, based upon his own observations, he concluded that the wagon was wider than the tractor. The wagon had two red lights and a reflector at the rear but had no other reflectors or lights. The officer's notes indicated that he received a radio call about the accident at about 9:35, that the weather was clear, dry and that the sky was dark. The officer was unable to ascertain the point of impact.
[ 252 Pa. Super. Page 210]
Each of the drivers testified to a different version of the events. Appellee Shaffer testified that he was travelling south on Garver's Ferry Road at about 9:30 p. m. As his car crested a hill, he observed the lights of an approaching vehicle. The vehicle was about 150 to 200 yards away when Shaffer first observed its lights. Because the lights were so close together, he assumed that it was a small sports car. Shaffer stated that the road was dry, narrow, and had some potholes. He stated unequivocally that he drove on the right hand side of the road at all times. However, the tractor lights glared in his eyes momentarily and he did not see the haywagon until after the accident occurred. He testified that he was travelling at 30-35 m. p. h. in an unposted area and that his car was under control at all times.
Appellant John Keith Alter testified that he was travelling north on Garver's Ferry Road on the night in question. He endeavored at all times to maintain the tractor and wagon on the right side of the road. From the time that Alter first saw Shaffer's car, about 500 feet away, he drove the wagon so that it was on its own side of the road. The tractor was proceeding at 6 m. p. h.; Alter stated that the Shaffer car was coming "fast". When the car was approximately 100 feet away, Alter noticed that it had crossed the center of the road and was approaching the tractor and wagon. He tried to move his vehicles further to the right but was unable to go too far because of some mailboxes about 3 feet from the roadway. He further stated that he waved a light over the left wheel of the tractor to draw attention to the width of the vehicle. At the time of the impact his vehicle was near a street light and almost half of the rig was off the road.
The owner of the tractor and wagon, M. Roy Alter, testified that he and his family had been conducting hayrides for approximately 20 years. He stated that the wagon was 8 feet wide and 17 1/2 feet long. The tractor was 18 inches wide in the front and 7 feet 4 inches wide at the rear wheels. The tractor was equipped with two tractor lights
[ 252 Pa. Super. Page 211]
located on a bar on the steering wheel column. The lights were approximately three feet apart and were directed so that they illuminated the road for about 30 feet ahead. Mr. Alter stated that the only lights or reflectors on the trailer were at the rear where two red lights and a reflector were located.
Two of the minor plaintiffs and the two chaperones testified. None saw the approaching Shaffer car because they were not facing oncoming traffic. Wayne Szajna, whose home is situated on Garver's Ferry Road, testified that on the night of the accident he was driving his car in the same direction as the haywagon on Garver's Ferry Road. Mr. Szajna testified that the haywagon was in the center of the road and; in order to pass it, he was forced to leave the left lane and travel partially on the left berm. The accident occurred a few moments after Mr. Szajna reached his home which is one half mile from the point at which he passed the wagon.
John L. Sacks, a professional legal photographer, testified for the defendants that on May 25, 1975, two and one-half years after the accident, he measured the roadway at the scene of the accident. The roadway was 17 feet 4 inches wide.
At the conclusion of the testimony concerning liability, the plaintiffs introduced medical testimony to prove the amount of the damages. The treating physician, each plaintiff, and one parent testified with respect to the extent of the injuries suffered.
The jury returned the following verdict:
"Ladies and gentleman of the Jury, harken to your verdict: Was Ronald Shaffer negligent in the operation of the automobile and was that negligence a legal cause of the accident and injuries? Answer: No. Was John Keith Alter negligent and was that negligence a legal cause of the accident and injuries? Answer: Yes. Was M. Roy Alter Negligent and was that negligence a legal cause of the accident and injuries? Answer: Yes. Was Ronald Shaffer,
[ 252 Pa. Super. Page 212]
M. Roy Alter, and John Keith Alter concurrently negligent and was that concurrent negligence a legal cause of the accident and injuries? Answer: No."
The amounts awarded, as molded by the court to reflect the expenses of the parents, were as follows:
Martha Caldwell: expenses $884.50
Carolyn Albert: expenses $2,021.43
Cynthia Solomon: expenses ...