No. 70 March Term, 1977, Appeal from the Order of the Court of Common Pleas of Adams County, Civil Action - Law, at No. 234 of February Term, 1974.
Henry O. Heiser, III, Gettysburg, for appellants.
Christian S. Erb, Jr., Harrisburg, with him Metzger, Wickersham, Knauss & Erb, Harrisburg, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, filed a concurring opinion. Cercone, J., dissents and would grant appellants a new trial with respect to the Clabaugh Estate only. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 534]
This case arises out of an automobile accident which occurred approximately two miles west of the Borough of Bonneauville in Adams County. Norman A. Weaver, appellants' decedent, was a passenger in the vehicle driven by Clabaugh which was travelling in a westerly direction. The accident involved a head on collision in the east bound lane of travel with an automobile driven by Dennis A. Snyder. There were no survivors.
Appellants instituted an action against the estates of the deceased drivers and Snyder's employer, National Cash Register, Inc.*fn1 Trial began on May 27, 1975. At the conclusion of the court's charge, the jury was requested to make seven special findings. After deliberating for three hours, the jury found, in part, that Gerald Clabaugh's negligence was the proximate cause of the accident; however, appellants' decedent, Norman A. Weaver, was found to have assumed the risk of riding in the Clabaugh automobile under the circumstances.*fn2
[ 255 Pa. Super. Page 535]
Timely post-trial motions for a judgment n. o. v. and a new trial were filed by appellants. Appellants contended that the lower court erred in submitting the issue of assumption of risk to the jury and that the verdict was against the law, the charge of the court and the weight of the evidence. Post-trial motions were denied and this appeal followed.
Central to all of the appellants' contentions is the argument that there was insufficient evidence to support a finding of assumption of risk. Specifically, they argue that there was no evidence from which it could reasonably be inferred that Weaver was subjectively aware of the fact that Clabaugh was unfit to drive due to intoxication.
After an in camera hearing, the following evidence of intoxication was admitted over objection. Mrs. Susan Kuhn, a barmaid at the Grey Goose Inn, in Bonneauville, testified that Clabaugh and Weaver arrived at the tavern together at noon and remained there until five o'clock, approximately fifteen minutes prior to the accident. Mrs. Kuhn estimated that she served Clabaugh six or more twelve ounce bottles of beer. In her opinion, Clabaugh appeared normal and showed no signs of intoxication.
The Snyder estate then introduced evidence establishing that blood samples obtained from Clabaugh's body at the scene of the accident were tested and contained a .16 percent concentration of alcohol. G. Thomas Passananti, Ph.D., an expert in toxicology, testified that anyone with a .16 percent blood alcohol content is intoxicated and, in his opinion, unfit to operate a motor vehicle. In rebuttal, appellants introduced the testimony of six men who were patrons of the ...