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filed: August 6, 1982.



Samuel K. Gates, York, for appellant.

George Douglas, Carlisle, for appellee.

Price, Wieand and Lipez, JJ.

Author: Wieand

[ 302 Pa. Super. Page 495]

Jeffrey Bortner was killed when a vehicle in which he was a passenger left a two-lane road in York County and overturned. Bortner and the driver, Rodger E. Gladfelter, had been drinking wine prior to the accident, and Gladfelter, a jury found, was visibly intoxicated.*fn1 The jury concluded that Bortner, age 18, and Gladfelter, age 17, were both negligent and that their negligence was equally responsible (50%) for Bortner's death. The jury also determined that the damages sustained in the wrongful death action were in the amount of $3,283.70, being the amount of the funeral expenses,*fn2 and that no damages had been sustained in the survival action. Plaintiff filed a motion for new trial, and when it was denied this appeal followed.

Appellant contends that it was error to admit into evidence the alcohol level contained in blood drawn from appellee approximately one hour after the accident. There is no merit in this argument. This evidence was relevant to assist the jury in determining whether plaintiff's decedent had been guilty of contributory negligence or had assumed the risk of riding with an intoxicated driver. To permit such a finding, of course, it was necessary that appellee show by a preponderance of the evidence that plaintiff's decedent knew of the risk and appreciated its unreasonable character. Weaver v. Clabaugh, 255 Pa. Super. 532, 536, 388 A.2d 1094, 1096 (1978); Watson v. Zanotti Motor Co., 219 Pa. Super. 96, 98, 280 A.2d 670, 672 (1971). This he did by

[ 302 Pa. Super. Page 496]

    the testimony of a board certified pathologist who expressed the opinion, based on the results of the blood test, that appellee had been visibly intoxicated at and immediately prior to the time of the accident.

Appellant also argues that the trial court improperly instructed the jury to apply an "average man" standard of conduct in determining whether his decedent had voluntarily assumed the risk. However, appellant failed to object to this instruction; and, therefore, he is precluded on appeal from assigning the alleged error as a basis for a new trial. Broxie v. Household Finance Company, 472 Pa. 373, 377, 372 A.2d 741, 743 (1977); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Whether to grant a new trial because of inadequacy of the verdict is peculiarly within the competence of the trial court, and its discretion is considerable. Its action, therefore, will not be disturbed on appeal except where there has been a clear abuse of discretion. Wilson v. Nelson, 437 Pa. 254, 256, 258 A.2d 657, 658-659 (1969); Dougherty v. Sadsbury Township, 299 Pa. Super. 357, 360, 445 A.2d 793, 795 (1982); Mueller v. Brandon, 282 Pa. Super. 37, 41, 422 A.2d 664, 666 (1980); Palmer v. Brest, 254 Pa. Super. 532, 536, 386 A.2d 77, 79 (1978). However, appellate courts do not abdicate their power of review and will reverse where a clear abuse of discretion appears. Hose v. Hake, 412 Pa. 10, 14, 192 A.2d 339, 341 (1963); Dougherty v. Sadsbury Township, supra.

"[T]o support the granting of a new trial for inadequacy, 'the injustice of the verdict should stand forth like a beacon.' So long as the verdict bears a reasonable resemblance to the damages proved, it is not the function of the court to substitute its judgment for that of the jury. Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 240 (1959); Morris v. Peckyno, 202 Pa. Superior Ct. 490, 492, 198 A.2d 396, 397 (1964). In the latter case, [the Superior Court,] quoting 15 Am.Jur., Damages, § 231, stated '"As a rule, a verdict in an

[ 302 Pa. Super. Page 497]

    action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instructions of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or, according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff, or where the award is so inadequate that it should not be permitted to stand. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more."'" Rutter v. Morris, 212 Pa. Super. 466, 469-470, 243 A.2d 140, 142 (1968). See also Dougherty v. Sadsbury Township, supra; Gudat v. Heuberger, 275 Pa. Super. 535, ...

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