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CHARLES LEBESCO v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (12/02/77)

decided: December 2, 1977.

CHARLES LEBESCO,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, APPELLANT



No. 927, October Term, 1977., Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law Division, at No. 477, November Term, 1969.

COUNSEL

Louis H. Van Dusen and John Rogers Carroll, Philadelphia, for appellant.

Donald E. Matusow, Philadelphia, for appellee.

Watkins, President Judge, and Hoffman, Cercone, Van der Voort and Spaeth, JJ. Jacobs and Price, JJ., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 251 Pa. Super. Page 418]

Appellant contends that the lower court erred in (1) allowing appellee's expert witness to present opinion evidence in response to a hypothetical question, (2) charging the jury regarding the zone of recognizable danger of a trackless trolley, (3) charging the jury that appellant would be required to compensate appellee for any additional harm caused by a venogram, and (4) instructing the jury that loss of life's pleasures was a separate, compensable element of damages. We affirm the lower court's order dismissing appellant's post-verdict motions.

On November 6, 1969, appellee filed a complaint in trespass in which he alleged that appellant's negligent operation of its trackless trolley caused appellee's injuries. At a jury trial which began on April 20, 1976, appellee presented the following testimony. On September 15, 1969, appellee took his son to a barber shop on the south side of Wyoming Avenue, slightly west of its intersection with "D" Street, in Philadelphia, Pennsylvania.*fn1 This intersection was a stop on the trackless trolley route that appellant operated on Wyoming Avenue. Appellee parked his automobile in an easterly direction in front of the barber shop entrance, slightly west of the trolley stop. When he left the barber shop, appellee helped his son into the passenger side of the automobile. He then walked to the back of the vehicle where he waited for the traffic proceeding in his direction to stop and walked to the driver's side of the automobile, unlocked the door, and entered the automobile. While sitting in the vehicle, appellee rolled down his window, leaving the door open about two feet. Appellee's left leg was outside the vehicle and his left hand was on the door. Suddenly, a trackless trolley, proceeding toward the curb in an easterly direction, hit appellee's partially open front door. The force

[ 251 Pa. Super. Page 419]

    of the impact moved the entire passenger side of the automobile onto the sidewalk, damaged that part of the vehicle, and crushed the left front door, and threw appellee out of the automobile into the street.

Shortly after the accident, appellee experienced bruises, swelling, discoloration, and severe pain in his right leg, which his physician diagnosed as thrombophlebitis of the deep and superficial veins of that leg. As a result of the accident, appellee has experienced permanent damage to his vascular system, including extensive blood clots, which requires appellee to keep his right foot elevated in order to avoid inflammation and ulceration and to take blood-thinning medication for the rest of his life. As a result of his condition, appellee cannot stand or sit for prolonged periods of time and can perform only sedentary part-time work.

At the time of the accident, appellee was a first class fitter/welder earning about $196.00 per week. Appellee's expert witness, an economist, testified that at the time of trial first class fitter/welders earned approximately $296.00 per week. However, appellee's inability to stand or sit for any length of time disables him from working as a fitter/welder as well as from all forms of full-time employment. Appellee was 42 at the time of trial and expert testimony established that future impairment of his earning capacity, reduced to present value, exceeds $250,000.00.

The jury returned a verdict of $360,000.00 against appellant. Appellant filed post-verdict motions seeking either a judgment n.o.v. or a new trial. On January 7, 1977, the lower court entered an order denying appellant's motions. This appeal followed.

Appellant's first contention is that the trial court erred in overruling appellant's objection to the opinion evidence of appellee's expert engineer because his testimony was in response to a hypothetical question not predicated upon facts in the record. The question of the admissibility of expert testimony is within the ...


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