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SANDRA EMBREY v. BOROUGH WEST MIFFLIN (07/12/78)

decided: July 12, 1978.

SANDRA EMBREY, EXECUTRIX OF THE ESTATE OF JOHN M. EMBREY, DECEASED,
v.
BOROUGH OF WEST MIFFLIN, A MUNICIPAL CORPORATION, APPELLANT AT NO. 416, TRAFFIC CONTROL AND ENGINEERING CO., AND ANDREW J. BROWN V. ECONOLITE CORPORATION, A CORPORATION AND ANNA MARIE SCHNUR. SANDRA EMBREY, EXECUTRIX OF THE ESTATE OF JOHN M. EMBREY, DECEASED, V. HOMESTEAD HOSPITAL, APPELLANT AT NOS. 344 AND 403. APPEAL OF TRAFFIC CONTROL AND ENGINEERING COMPANY, INC., AT NO. 410



NOS. 344, 403, 410, 416 April Term, 1975, Appeal from the Judgments of the Court of Common Pleas, Civil Division, of Allegheny County, at Nos. 3718 July Term, 1972 and 1830 April Term, 1973

COUNSEL

Wilbur McCoy Otto, Pittsburgh, for appellant, at Nos. 344 and 403.

Ronald H. Heck, Pittsburgh, for appellant, at No. 410.

Jan C. Swensen, Pittsburgh, for appellant, at No. 416.

Vincent J. Grogan and John E. Kunz, Pittsburgh, for appellee.

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

Author: Van Der Voort

[ 257 Pa. Super. Page 171]

The issue on this appeal is the correct apportionment of an award of damages between two groups of defendants, those responsible for a highway accident and those responsible for the medical and hospital malpractice which followed.

The litigation grows out of a collision on April 20, 1972, between two cars at the intersection of Route 885 and Lewis Run Road in the Borough of West Mifflin, one driven by John M. Embrey on Lewis Run Road and the other by Anna Marie Schnur on Route 885. The evidence established to the jury's satisfaction that at the moment the cars reached the intersection the traffic control signal simultaneously showed a green light for travel on both roads. The automobiles collided and Embrey suffered personal injuries consisting of

[ 257 Pa. Super. Page 172]

    seven fractured ribs, fractures of three lumbar vertebra and a laceration of the spleen. He was taken to Homestead Hospital where he was placed under the care of Dr. Andrew J. Brown, a physician on hospital duty at the time. Five days later Embrey died of pulmonary edema.

Sandra Embrey, widow of the decedent, as executrix of his estate and on behalf of herself and her two minor children, brought suit under both the Survival Act and the Wrongful Death Act against the Borough of West Mifflin; Traffic Control and Engineering Company (hereinafter, Traffic Control), which had installed the malfunctioning traffic signal and serviced it for the Borough; and Dr. Brown, on the averment that the medical care which he afforded the decedent was negligently administered. Traffic Control joined Econolite Corporation, from which it had purchased the signal equipment, as an additional defendant on the contention that the equipment was defective. Mrs. Embrey also filed a separate suit against Homestead Hospital on the claim that its services had been rendered negligently. The hospital joined Anna Marie Schnur, driver of the second car, as an additional defendant. Numerous claims for indemnity were filed between the various defendants.

The two lawsuits were consolidated and tried to a jury over a period of fifteen days. Because of the complexity of the litigation due to multiple theories of liability against six different defendants and the cross claims which were filed between them, the case was submitted to the jury on special interrogatories. The framing of these questions was discussed with counsel for all parties.

The interrogatories and the jury's answers were as follows:

Interrogatory No. 1(a) : Was there a malfunction of the traffic signal at Lewis Run Road and Route 885 at the time of the accident?

Answer: Yes.

1(b) : If so, was the malfunction a proximate cause of the accident?

[ 257 Pa. Super. Page 173]

Answer: Yes.

Interrogatory No. 2 : If the answer to 1(a) is "Yes", was the malfunction the result of: (a) failure to maintain the equipment properly; (b) a defect in the equipment at the time of sale making it unreasonably dangerous; (c) both of the above; or (d) none of the above.

Answer: Failure to maintain the equipment properly.

Interrogatory No. 3 : If your answer to either 2(a) or 2(c) is "Yes", whose negligence was responsible for the failure to maintain the traffic signal? (a) the Borough of West Mifflin; (b) Traffic Control and Engineering Company; or (c) both of the above.

Answer: The Borough of West Mifflin and Traffic Control and Engineering Company.

Interrogatory No. 4(a) : Did John Embrey assume the risk?

Answer: No.

Interrogatory No. 5(a) : Was John Embrey contributorily negligent?

Answer: No.

Interrogatory No. 6(a) : Was Anna Marie Schnur negligent?

Answer: No.

Interrogatory No. 7(a) : Was Dr. Andrew J. Brown negligent?

Answer: Yes.

(b) : If so, was his negligence a proximate cause of any ...


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