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UPSHUR v. SHEPHERD

May 18, 1982

GEORGE D. UPSHUR and LINDA UPSHUR
v.
GEORGE SHEPHERD



The opinion of the court was delivered by: BRODERICK

This case was tried to a jury on October 13th and 14th, 1981. On October 14th, 1981, the jury returned a verdict for defendant and the Court accordingly entered judgment in the defendant's favor. Plaintiff, an employee of the Pennsylvania Liquor Control Commission, was a passenger in a Commission van conducting business for his employer when the van skidded sharply from the right northbound lane of a four-lane divided highway into the left northbound lane, turning around 180 degrees during the skid. Defendant was driving his car in the left northbound lane. After the van skidded from the right northbound lane to the left northbound lane, it was hit by defendant's car. At trial, plaintiff alleged that the accident was due solely to defendant's negligence in failing to stop before hitting the van. Defendant alleged that he was confronted with a sudden emergency, that he reacted as a reasonable man in the face of this emergency, and his conduct was therefore not the proximate cause of the accident.

 Plaintiff now requests a new trial, raising three grounds. First, plaintiff claims that this Court erred in not permitting him to present rebuttal testimony by an expert witness. Second, he claims error in that the Court sustained defendant's objection to a portion of plaintiff counsel's closing argument. Third, plaintiff claims error in that the Court overruled his objection to a portion of the instructions given to the jury. For the reasons hereinafter set forth, plaintiff's motion for a new trial is denied.

 During the plaintiff's closing argument, defense counsel objected to plaintiff's counsel explaining to the jury the law which the jury should apply to the evidence. The Court sustained the objection but did not strike counsel's remarks nor was the jury instructed to disregard those remarks. The relevant portion of the trial transcript reads:

 
MR. O'NEILL: Ladies and gentlemen, as I said before, I feel like I'm belaboring the obvious, but I admit I am trying to convince you that [plaintiff] George Upshur's version of this accident is the only believable one. And if you do believe him, it matters not whether you find that Alfred Salvatore, [the driver of the van in which plaintiff rode] was also negligent in causing the skid and the accident. Because it's clear that George Shepherd, [the defendant] the following car, the one coming up from the rear, was clearly negligent; and if both are negligent --
 
MR. McDONALD: I object, Your Honor. This sounds to me like getting into your province and what the law is, and so forth.
 
THE COURT: I think so. I will charge the jury on negligence.
 
MR. O'NEILL: All right.
 
Ladies and gentlemen, George Upshur is entitled to a verdict even if both drivers were negligent and causing this accident.
 
Mr. Salvatore is not a party to this action. But both drivers, if they were negligent, would be responsible and still a verdict would have to be --
 
MR. McDONALD: Again I object, your Honor.
 
THE COURT: Well, I know I sustained the objection. Let's proceed.
 
MR. O'NEILL: All right.
 
THE COURT: If you are finished, ...

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