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filed: February 1, 1980.


No. 2633 October Term, 1978 Appeal from the Order of the Court of Common Pleas of Delaware County, Civ. Div., Civil Action - Law at No. 73-5629


John A. Luchsinger, Media, for appellant.

William Archbold, Jr., Media, for appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Spaeth

[ 275 Pa. Super. Page 550]

This is an appeal from an order of the lower court granting appellee, the plaintiff below, a new trial limited to the issue of damages. Appellant argues that the lower court erred (1) in refusing to enter judgment n. o. v. in his favor; (2) in granting appellee a new trial; and (3) in limiting the new trial to the issue of damages.

This case arose out of a motor vehicle collision that occurred at approximately 3:00 p. m. on January 11, 1973, on Upland Avenue in Delaware County. Appellee described the accident as follows. He was driving his sister's automobile north on Upland Avenue and stopped in the left northbound lane directly across from the entrance to a shopping center located on the west side of the highway. When traffic in the left southbound lane stopped to permit appellee to make the left turn into the shopping center, he looked up the highway, saw that the road was clear, started his turn, looked again, and then drove across the southbound lanes toward the entrance to the shopping center. He was traveling at 5 to 10 miles per hour. Before he could completely enter the shopping center parking lot, however, his automobile was struck on the rear part of its right side by appellant's automobile. Appellant had been driving in the far right southbound traffic lane. Appellant's automobile bounced off appellee's and collided with an automobile in the left southbound lane. The force of the collision was such that the rear of appellee's automobile came to rest on top of a ten inch high concrete island in the center of the entrance to the shopping center. The rear wheels were damaged. Appellee maintained that when he looked up the highway it was clear. At various times during his testimony he estimated that he could see from approximately 300 to 550 feet up Upland Avenue and that no automobiles were approaching

[ 275 Pa. Super. Page 551]

    him. When questioned on cross-examination as to why he did not see appellant, he answered, "I guess I don't know where he came from." He said that appellant's automobile made skid marks approximately 75 feet long.

Two people who were on the scene testified in appellee's behalf, as follows. Luellen Alexander, a neighbor of appellee's, had been at her doctor's office that afternoon. She left at approximately 3:00 p. m., and drove down 24th Street to its intersection with Upland Avenue. While stopped at the stop sign she saw appellant speed past her on Upland Avenue at approximately 45 to 50 miles per hour. At about the same time, she saw appellee proceeding slowly across Upland Avenue toward the shopping center. Appellant braked his automobile suddenly and it skidded and collided with appellee's. The speed limit on Upland Avenue was 35 miles per hour. Diane Liss was driving in the left southbound lane on Upland Avenue at the time of the accident. Traffic had stopped in her lane so she stopped across from the entrance to the shopping center to permit appellee to make his left turn in front of her. Appellee made his turn very slowly. As he was completing the turn she heard the sound of squealing brakes behind her. She saw appellant's automobile collide with appellee's automobile and then with hers.

Appellee's testimony on the issue of damages was as follows. Immediately after the collision he heard a buzzing sound in his ears, and later that day he went to Sacred Heart Hospital with lower back and hip pains. He was treated by Dr. Charles Hummer and remained in the hospital until January 19. While in the hospital he was for awhile placed in traction. After his release from the hospital, he returned to Dr. Hummer, and received out-patient therapy at the hospital. He returned to work on April 4, 1973, but after working a few days, he again returned to Dr. Hummer and was again placed in the hospital with lower back and leg pains. He was released from the hospital on April 23, 1973, and returned to work in early June 1973. When he returned to work in June he had to wear a brace

[ 275 Pa. Super. Page 552]

    and was under doctor's orders not to lift anything over fifteen pounds. He still had pain at the time of trial. Because of his pain he had missed several days of work, especially in the cold weather. When he was out of work in the winter and spring of 1973, there was a lot of activity in the shipyard where he worked. He therefore not only lost work but also the opportunity to work a substantial amount of overtime. Appellee admitted to having suffered two prior injuries to his back, one in 1946, and the other in August 1972. He said that he had had no problems with his back after the 1946 injury, and that he had ...

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