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LAWRENCE CATINA v. ALFRED E. MAREE AND BURKE CHEVROLET SALES (11/27/79)

filed: November 27, 1979.

LAWRENCE CATINA, ROCCO CATINA AND ANITA CATINA, HIS WIFE, APPELLANTS,
v.
ALFRED E. MAREE AND BURKE CHEVROLET SALES, INC. LAWRENCE CATINA, ROCCO CATINA AND ANNA CATINA, *FN1HIS WIFE, APPELLANTS, V. ALFRED E. MAREE, SR., INC.



No. 2311 October Term, 1978, No. 2312 October Term, 1978, Appeals from the Orders in the Court of Common Pleas of Luzerne County, Nos. 1765 & 1766 October Term, 1970.

COUNSEL

Sandor Yelen, Wilkes-Barre, for appellants.

Richard J. Confair, Wilkes-Barre, for appellee.

Price, Spaeth and Lipez, JJ. Spaeth, J., concurs in the result.

Author: Price

[ 272 Pa. Super. Page 253]

On November 19, 1968, appellant Lawrence Catina was struck by a vehicle driven by appellee Alfred E. Maree. As a result of the accident, Mr. Catina sustained serious personal injuries, including permanent brain damage, amnesia, and permanent damage to his right knee and arm. He was hospitalized for one year and totally disabled for five. No legal action was taken in the matter until November of 1970 when separate complaints were filed against the driver of the vehicle and Burke Chevrolet Sales, Inc., and against Alfred E. Maree, Sr., Inc.*fn2 The parties and issues were joined, and a jury trial finally commenced on May 3, 1976. A verdict was returned in favor of appellees, and subsequent to the denial of a motion for a new trial, these appeals were perfected.

Initially, there is no dispute that Alfred Maree actually struck Lawrence Catina, the point of contention being whether the victim was struck on or off the road surface. Similarly undisputed is the immediate physical setting of the accident and the participants, those being as follows. On November 19, 1968, Lawrence Catina, accompanied by his brother Anthony R. Catina, arrived at the parking lot of the U. S. Army Reserve Center, Route 315, Plains Township, for the purpose of attending a Reserve meeting. The parking

[ 272 Pa. Super. Page 254]

    lot is separated from the Reserve Center by Route 315, a four lane highway accommodating two lanes each of north and south bound traffic. A dirt berm runs along both sides of the highway, and a twenty foot wide driveway connects the parking lot with the southbound lane. No signs in the immediate area indicate the presence of either the center or the lots, nor are there any crosswalks, lights, or signs disclosing any type of pedestrian crossing.

The actual details of the accident, however, are obscured in the haze of discordant recollections so common to this type of incident. Robert Yurksis, a witness presented by appellants, testified that at the time of the accident, he was standing on the easterly side of the highway near the Reserve Center, diagonally across from the entrance to the lot in which the Catinas had parked. He noticed one of the reservists, later identified as Lawrence Catina, walking toward the entrance and away from a larger body of reservists. At the same time, he observed a car proceeding south on Route 315, later identified as being driven by Alfred E. Maree, move off the road so that its right front tire was travelling on the berm. It continued moving forward on the gravel berm until its right front fender struck Lawrence Catina, who was still positioned approximately four feet off the highway in the middle of the parking lot driveway. Mr. Catina's body was thrown into the air and came to rest in the middle of the highway, while the vehicle pulled into one of the parking lots.

In another version of the incident, Robert W. Young, another member of the reserve unit, testified for appellees that immediately prior to the accident he was in a motionless automobile facing in a northbound direction immediately prior to making a left-hand turn into the parking lot on the west side of Route 315. From this position, Mr. Young was able to observe Mr. Maree's car for some fifteen seconds prior to the accident. It was proceeding in a southerly direction in the passing lane, with lights on and all four wheels on the highway. As the vehicle approached the entrance to the lot, Lawrence Catina, who had been standing

[ 272 Pa. Super. Page 255]

    some six to ten feet from Mr. Young's car with two other reservists, "jumped up in the air and . . . came down in the front of that vehicle." (N.T. 596). Mr. Catina made contact with the car in the center of the hood, and the impact threw his body to a point three or four feet from the yellow center line.

A second witness for appellees, one Louis Jakubczyk, testified that he was a member of the reserve unit and on the evening of the accident had parked in the vicinity of the southerly parking lot. He exited his car and walked to the berm, stopping approximately five to six feet from the highway and in front of the opening to the southern lot. At this point, he noticed a fellow reservist, later identified as Lawrence Catina, standing twenty feet to his left and five to six feet from the roadway. Mr. Jakubczyk turned to observe traffic from the right and as he started to turn his head back to the left, he heard a loud noise. He then looked straight across the road, noted a car passing in front of him in the non-passing lane of Route 315 south, and a body lying a hundred feet south of his position on the roadway. The witness could not be certain if that car was driven by Mr. Maree because of the heavy traffic on the road. He did not see the actual impact.

Finally, Alfred Maree testified that on the date of the accident, he was travelling south on Route 315 at approximately forty-five miles per hour in the non-passing lane. The evening was clear and dry, and visibility good. He noticed no markings for a crosswalk, signs indicating such a walk, or traffic control lights. As he approached the accident scene, he noticed no reservists, but saw one car in the northbound lane facing towards him with its left turn signal flashing. As he passed the plane of the motionless car, appellant moved out into the road and made contact with the right front portion of Mr. Maree's auto at a time that the vehicle was entirely on the roadway.

The jury chose to believe the witnesses for appellees and returned a verdict in their favor. Appellants now make

[ 272 Pa. Super. Page 256]

    numerous allegations of error,*fn3 none of which, either separately or in conjunction, merit the award of a new trial.

Appellants argue initially that the trial court erred with respect to certain testimony offered by Robert Yurksis. That witness responded thusly when asked whether Mr. Maree's auto veered in any direction after it had allegedly left the highway and before it struck Mr. Catina:

"A. Before he hit him, no, he just, it looked liked he just, when I first seen him I don't know how he got over there, when I first seen him off the road he just, you know, he just stayed off the road and I don't know, maybe he tried to get it back on or not, but he didn't ____;" (N.T. 21) (emphasis added).

On objection by appellees' counsel, the entire question was stricken by the trial judge. We can perceive no error here. In Shaffer v. Pittsburgh, 336 Pa. 273, 9 A.2d 395 (1939), the plaintiff was attempting to prove constructive notice of a sidewalk hole caused by the absence of a small glass disc. One of the plaintiff's witnesses testified that "'it looked kind of dirty; it looked like it had been out for a while'". Id., 336 Pa. at 275, 9 A.2d at 396. The remark was stricken and the action affirmed by our supreme court, "because the statement was not really descriptive of a fact but amounted to an inadmissible expression of opinion [citations omitted]." Id.

Appellants concede that a portion of the answer was improper for this reason, but argue that since part of the statement was acceptable, the objection to strike the entire response should have been overruled. See Smith v. Cunningham Piano Co., 239 Pa. 496, 86 A. 1067 (1913); Hamilton v. Pittsburgh, B. & L.E.R. Co., 194 Pa. 1, 45 A. 67 (1899). It does appear that the witness' first words to the effect that the car did not veer are free of the objectionable expression of opinion that taints the latter portion of the answer. This,

[ 272 Pa. Super. Page 257]

    however, is hardly cause to complain, for on the second succeeding question, the witness stated that the vehicle turned neither left nor right prior to striking the victim. The same information was consequently placed before the jury, and if counsel wished to specifically use the word "veer" again, he could have readily done so. Thus, if any error was committed, it was patently harmless.

Appellants' second argument concerning this witness' testimony is that the court erred in not allowing him to give an opinion as to the speed of Mr. Maree's vehicle. Concerning this, appellants correctly note that there is no absolute prohibition on laymen testifying regarding the speed of a moving vehicle. Guzman v. Bloom, 413 Pa. 576, 198 A.2d 499 (1964); Sapsara v. Peoples Cab Co., 381 Pa. 241, 113 A.2d 278 (1955) (per curiam); Radogna v. Hester, 255 Pa. Super. 517, 388 A.2d 1087 (1978); Cartmel v. Williams, 207 Pa. Super. 144, 215 A.2d 282 (1965); Kozemchak v. Garner, 163 Pa. Super. 328, 61 A.2d 375 (1948). The witness may be deemed competent to testify on this point so long as he observed the vehicular movement and possesses impressions of vehicles at similar speeds. Shaffer v. Torrens, 359 Pa. 187, 193, 58 A.2d 439, 442 (1948); Radogna v. Hester, supra, 255 Pa. Super. at 520, 388 A.2d at 1088. As we have just recently noted:

"[D]ecisions have required that the witness have something more than just a 'fleeting' glance of the vehicle in question, Early [Ealy] v. New York Central R.R. Co., 333 Pa. 471, 5 A.2d 110 (1939); Anderson v. Penta [Perta], 138 Pa. Super. 321, 10 A.2d 898 (1939), the important consideration being that the witness have at least a minimum of time to make a reasonable estimation of speed. Cases which have rejected a witness' observation because the witness did not see the vehicle in motion for more than a few feet before the collision have indicated that the witness' testimony was not admissible because of the brevity, the ...


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