NO. 2311 PHILADELPHIA, 1981, Appeal from the Order of July 29, 1981 in the Court of Common Pleas of Philadelphia County, Trial Division, at No. 5648 October Term, 1978.
Howard A. Davis, Philadelphia, for appellant.
Eugene A. Spector, Philadelphia, for appellees.
Wieand, Beck and Hoffman, JJ. Wieand and Hoffman, JJ., concur in the result.
[ 309 Pa. Super. Page 468]
Anahid Hilbert sued Jacob Katz in trespass for injuries sustained when Katz's automobile hit her vehicle in a collision in Hatboro on May 4, 1978. At a jury trial in 1980 a verdict was returned in favor of Katz and Hilbert filed post trial motions for judgment non obstante veredicto and a new trial. In July 1981 the lower court granted the appellee Hilbert's motion for a new trial "because of the uncertainty as to the basis for the verdict" and from this order Katz now appeals.
At trial it was established that Hilbert was travelling west on Montgomery Avenue in Hatboro Township, just west of the intersection of Montgomery Avenue and York Road. At the time of the collision Katz was entering Montgomery Avenue from the driveway of a bank located on the southside of Montgomery, and was turning eastward. The front left of his car hit the rear left of Hilbert's car. Each party claims to have been on the correct side of an imaginary line on Montgomery Avenue that separates eastward from westward traffic.
Appellee did not notice or complain of any injury at the time of the accident. However, she introduced expert medical testimony to establish that the impact of the collision revived a 1973 injury to her left neck and shoulder, which had been asymptomatic prior to the 1978 accident, resulting in pain, loss of movement, and deterioration of the cervical spine. Appellant did not introduce rebuttal expert witness, choosing to rely instead on cross-examination of Hilbert's medical expert.
The case was tried under 42 Pa.C.S. 7102,*fn1 the comparative negligence statute. In conformity with the statute, the jury answered special interrogatories as follows:
[ 309 Pa. Super. Page 469]
Do you find that the defendant was ...