No. 997 April Term, 1976; No. 998 April Term, 1976, Appeals from the Order dated July 15, 1976, of the Court of Common Pleas of Allegheny County, Civil Division, at Nos. 1816 and 1815, July Term, 1974.
Jerome M. Libenson, Pittsburgh, for appellants.
James A. Mollica, Jr., Pittsburgh, with him Richard J. Mills, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. Van der Voort, J., did not participate in the consideration or decision of this case.
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These appeals are from an order of the lower court denying appellants' motion for a new trial. We find the jury verdicts returned in these trespass actions to be ambiguous. We therefore reverse the order of the lower court and remand the case for a new trial.
On June 20, 1973, Joyce Paugh and John Rusidoff were passengers in a car driven by Mrs. Rusidoff. The automobile was proceeding in a southerly direction on Route 38 in Butler County. Appellants allege that, at approximately 8:40 a. m., one of appellee's employees, operating a tractor-trailer in a northerly direction on Route 38, struck a deer with sufficient force to send it crashing into the interior of the Rusidoff auto. As a result of the accident, Mr. Rusidoff was severely injured and Ms. Paugh was killed. A wrongful death and survival action on Ms. Paugh's behalf and Mr. Rusidoff's personal injury action were consolidated for trial, which commenced on February 10, 1976.
Appellants presented much circumstantial evidence to establish the identity of the tractor-trailer, including testimony
[ 251 Pa. Super. Page 211]
describing the approximate size and color of the truck and the load it carried. There was, however, no positive identification of the rig as a DeBolt Transfer vehicle.
After three hours of deliberation, the jury asked the following questions of the Court:
"Can we be told if in the testimony Mrs. Rusidoff told the State Trooper at the time of the accident the description of the truck? Also, what word or words did she use to describe the truck to the pharmacist?"
The court refused to respond to the questions except to tell the jury that it was their recollection of the ...