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March 11, 1983


No. 782 Pittsburgh, 1981, No. 814 Pittsburgh, 1981, No. 818 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 77-7209

Before Brosky, Johnson and Montgomery, JJ.


Appellant John D. Yesko brought this action to recover damages for injuries he suffered when the vehicle he was driving collided with a piece of machinery owned by Baille Industries, Inc. Baille Industries had been hired to do some excavation work by Atomatic Manufacturing Company, which is located in the Borough of Chalfant. The work was necessitated by an increase in water pressure in a manhole located next to the Atomatic Building on West Street.The machine, a backhoe, was used on June 16, 1975 and remained on the street when work was ceased at approximately 8 p.m. The accident in which Mr. Yesko was injured apparently occurred after midnight, but before 1:48 a.m. on June 17. Mr. Yesko's pickup truck collided with the bucket of the backhoe and was found by police officers turned on its roof.

It is Mr. Yesko's contention that the accident occurred as a result of the negligence of the named defendants in leaving the backhoe in the street at night. A jury returned a verdict in his favor in the amount of $30,000 against all defendants.

The defendants moved for new trial and/or judgment n.o.v. The lower court granted new trial and denied the judgment n.o.v. motion. Mr. Yesko appeals the grant of new trial and Baille Industries and the Borough of Forest Hills have appealed the denial of their motions for judgment n.o.v.

The lower court granted the motion for new trial because it concluded that the trial court erred in ruling that proffered testimony as to intoxication was inadmissible. The defendants had sought to introduce the testimony of a bartender who, while he did not serve alcohol to appellant Yesko, nor see him drinking, nonetheless concluded based on his observation of him shortly before the accident, that Mr. Yesko was intoxicated.

On appeal, Mr. Yesko argues that the lower court erred in granting new trial on these grounds because the proffered testimony lacked an adequate factual basis.

In their appeal, Baille Industries and Forest Hills argue that judgment n.o.v. should have been granted because Mr. Yesko did not sustain his burden of proof as to negligence and that, in any event, he should have been found contributorily negligent as a matter of law.

We have carefully reviewed these issues and the record and conclude that the lower court did not err in its disposition of the motions. The issues are thoroughly and ably discussed in the lower court opinion and we need comment no further.

Order affirmed.



JOHN D. YESKO, Plaintiff, v. KEN BAILLE, t/d/b/a BAILLE INDUSTRIES, INC., ALEX KINDLING, t/d/b/a ATOMATIC MANUFACTURING CO., and the BOROUGH OF CHALFANT, a municipal corporation, Original Defendants, v. KEN BAILLE, t/d/b/a BAILLE INDUSTRIES, INC., ALEX KINDLING, t/d/b/a ATOMATIC MANUFACTURING CO., and the BOROUGH OF CHALFANT, a municipal corporation, and THE BOROUGH OF FOREST HILLS, Additional Defendants.

No. G.D. 77-7209

Before: Finkelhor, Barry and Narick, JJJ.


July 20, 1981

The above-captioned matter in trespass is before the Court en banc on the motions of all defendants for a new trial and/or judgment n.o.v. following a jury verdict rendered March 13, 1980, in favor of plaintiff in the amount of $30,000*fn1 against all defendants. The major issue in dispute is whether the Court erred in excluding opinion testimony of the alleged intoxication of plaintiff prior to a single car automobile accident.

The facts adduced at trial, viewed in the light most favorable to plaintiff, and resolving all conflicts in plaintiff's favor, are summarized below.

Plaintiff was injured in the early morning hours of June 17, 1975, when the truck he was operating struck the bucket of a backhoe parked in the northbound lane of West Street, in the Boroughs of Forest Hills and Chalfont in the County of Allegheny and located on the dividing line of the two municipalities.

During the morning of June 16, 1975, Alex Kindling, president of Atomatic Manufacturing Company in the Borough of Chalfant, noticed an increase in water pressure in a manhole located next to his building on West Street. Mr. Kindling met with officials of both the Boroughs of Chalfont and Forest Hills to discuss the problem and to request a backhoe for necessary repairs. Neither Borough owned nor had access to the necessary digging equipment. Mr. Kindling further requested from both Boroughs warning barricades to be used when the digging equipment became available. At approximately 4:45 the same evening, Kenneth Baille, owner of Baille Industrial Co., was contacted and hired by Kindling to excavate with his backhoe the problem site on the Kindling property, located adjacent to the northbound lane of West Street. Dirt was deposited on the sidewalk and street. Both Boroughs were alerted to the work and sent representatives to the site (T. at 230, et seq.) and one of the Boroughs also sent four sawhorses to the area.*fn1a

West Street is a two-lane street running north and south and is approximately 26 feet wide. West Street divides the Boroughs of Forest Hills and Chalfont and is a straight road with an estimated view of 500 to 700 feet. The posted speed limit is 25 m.p.h.

Beginning at 6:00 p.m., Mr. Baille began digging with the backhoe and removed approximately 16 feet of dirt from the sewer area and placed it on the sidewalk within the radius of the backhoe. At approximately 8:00 p.m., due to inadequate light, Baille stopped work and left the backhoe in its operating position on West Street to prevent vehicles from driving too close to the excavation.The backhoe, which weighed approximately 10-1/2 tons, was painted bright yellow. There were no lights, flares or reflectors on the backhoe itself and the bucket extended across the center of the road. The nearest street light was approximately 150 feet away.

Mr. Brezarich, a police officer of the Borough of Chalfont, testified that he received a complaint on the evening of June 16th concerning an obstruction on West Street. The complaint was made by phone to the Borough of Forest Hills, which acts as the central dispatching station for police calls involving the Boroughs of Chalfont, Wilkins, Churchill and Forest Hills. When Officer Brezarich went to the scene at approximately 7:00 p.m., there were four sawhorses at the site, provided by either Forest Hills or Chalfont. Two of the sawhorses were aluminum frame, painted black and white striped, with a battery-operated amber flasher approximately 6 to 8 inches in diameter. The aluminum horses were located 50 feet from the excavation. The other two sawhorses were wooden, 8 to 10 feet long, and were also painted black and white. Neither of the wooden sawhorses had blinkers or lights.

Mr. Brezarich directed that the aluminum horses be moved to the intersection of West Street and Highland Avenue and at the intersections of West Street, Avenue F and North Avenue, approximately 100 feet north and south of the excavation. The wooden horses were placed on the sidewalk on the south side of the backhoe and on the outside of the excavation. A cardboard sign saying "Road Closed" was placed on the aluminum horse to the south of the intersection.

Witness Glew, who drove by the site, testified that he was able to see the backhoe when driving with lights. The witness Kowalski testified that the bucket of the backhoe was not visible. However, all witnesses agreed that there was sufficient space to drive by the obstruction.

At approximately 1:48 a.m. on June 17th, the police sergeant for the Borough of Forest Hills received a call to go to an accident on West Street in Chalfont and at approximately 2:00 a.m., an off-duty police officer of Chalfont drove upon the scene of the accident. At that time, a pickup truck driven by the plaintiff Yesko was turned on its roof in the southbound lane. The backhoe had moved approximately five to ten feet and the aluminum sawhorse was in the middle of the road. Kindling, who went to the scene about 2:15 a.m., testified that he did not see skid marks in the area. Mr. Yesko, the driver of the truck, was taken to the hospital for treatment of injuries sustained and remembers nothing of the collision.

Yesko testified that he had been in Wall earlier in the evening at the Wall Hotel,*fn2 and felt ill and borrowed a friend's truck, drove to Turtle Creek to find another friend at approximately 11:00 p.m., and had no recollection beyond that time.

To support the defense of intoxication, defendants sought to introduce the testimony of bartender Burchell that the plaintiff entered the Journey's End Bar approximately 30 to 60 minutes before the accident and that, in his opinion, plaintiff was visibly intoxicated.


Plaintiff brought this action in trespass against Ken Baille, t/d/b/a Baille Industries, Inc., alleging negligence in obstructing a public street without adequate warnings; against Alex Kindling, t/d/b/a Atomatic Manufacturing Co., alleging negligence in failing to properly supervise the construction on, and adjacent to, his premises; and against the Borough of Chalfont alleging negligence in failing to supervise an obstruction in a public street and failure to warn of the dangerous condition. The Borough of Chalfont joined the Borough of Forest Hills as the situs of the accident. The Borough also joined Ken Baille, t/d/b/a Baille Industries, Inc., and Alex Kindling, t/d/b/a Atomatic Manufacturing Co., for liability over.*fn3


In support of this motions for judgment n.o.v., it is defendants' position that plaintiff failed to establish a prima facie case of negligence of any defendant and that, in addition, plaintiff was guilty of contributory negligence as a matter of law because of his violation of the assured clear distance provision of the Motor Vehicle Code. 75 P.S. 1002(a).

The major issues raised by defendants in their motions for a new trial are as follows:

1) The verdict is contrary to the law and the evidence, and is against the weight of the evidence.

2) The Court erred in excluding evidence of plaintiff's alleged intoxication prior to the accident.

3) The Court erred in its instructions regarding the respective duties of care and supervision of the road and the backhoe; and

4) The Court erred in its charge regarding plaintiff's presumed exercise of due care due to his lack of memory of the accident.


In considering a motion for judgment n.o.v., the Court must view the evidence, including all reasonable inferences arising therefrom, in the light most favorable to the verdict winner. Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Piekarski v. Club Overlook Estates, Inc., 412 A.2d 40 (1973); Szumski v. Lehman Homes, Inc., 406 A.2d 1142 (Pa. Super. 1979). Judgment n.o.v. may only be granted where there is insufficient evidence to sustain the verdict against the losing party. Szumski v. Lehman Homes, Inc., supra; Kolb v. Hess, 227 Pa. Super. 603, 323 A.2d 217 (1974).

An application for a new trial is addressed to the discretion of the court en banc under the particular facts, Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); Canery v. SEPTA, 406 A.2d 1093 (Pa. Super. 1979), and may not be granted merely because the trial judge may have arrived at a different conclusion than the reached by the jury. Carroll v. Pittsburgh, 368 Pa. 435, 84 A.2d 505 (1951); Bertab Inc. v. Fox, 418 A.2d 618 (Pa. Super. 1980).

A new trial is also appropriate where the charge of the Court is erroneous or misleading and operates to the prejudice of the moving party. However, in determining whether the alleged error in the charge supports the granting of a new trial, the charge must be viewed in its entirety. Glider & Cmwlth. Dept. of Highways, 435 Pa. 140, 255 A.2d 542 (1969); Segriff v. Johnston, 402 Pa. 109, 166 A.2d 496 (1960), cert. denied 366 U.S. 941; Mount v. Bulifant, 438 Pa. 265, 265 A.2d 627 (1970).

The arguments raised by defendants will be considered ad seriatim.



It is the position of all defendants that plaintiff failed to establish a prima facie case of negligence and that there was no issue to be submitted to the jury. While the mere occurrence of an accident does not establish negligence, negligence may be established by circumstantial evidence. Where there can be a reasonable inference drawn from the facts that an accident was caused by negligence, the issue is one for the jury. Laubach v. Haigh, 433 Pa. 487, 252 A.2d 682 (1969); Gash v. Lautzenheizer, 405 Pa. 312, 176 A.2d 90 (1962); Carter v. United Novelty & Premium Co., 389 Pa. 198, 132 A.2d 202 (1957).

The circumstances of the instant case are that plaintiff's vehicle hit the bucket of a backhoe which partially obstructed a public road. The road was not blocked off to traffic. The backhoe itself was not lighted, and the only warnings were sawhorses located approximately 100 feet from the excavation and equipment. The nearest street light was approximately 150 feet from the backhoe. All defendants had knowledge of the excavation. These physical circumstances were sufficient to submit the issue of negligence to the jury -- i.e., whether sufficient warning was given to the traveling public, including the plaintiff, of the obstruction.

It is the further position of defendants, the Boroughs of Forest Hills and Chalfont, that there was no evidence that they received notice of the obstruction and therefore they cannot be responsible for the accident.

While a municipality is not an insurer of its roads, it has a duty to maintain its streets in reasonably safe condition for travel. Before liability can be imposed, the municipality must have actual or constructive notice of the dangerous condition. Bacsick v. Barnes, 234 Pa. Super. 616, 341 A.2d 157 (1975). Based upon the record, plaintiff has produced such evidence.

Atomatic Manufacturing was located in the Borough of Chalfont and the digging was on the side of West Street within the boundaries and jurisdiction of Chalfont. However, when the backhoe was parked the evening of the accident, the bucket extended across West Street into the side under the jurisdiction of the Borough of Forest Hills.

Under the facts of record, the Borough of Chalfont had actual notice of the obstruction. Police Officer Brezarich was at the scene and directed the placement of the sawhorses. In addition, Mr. Kindling gave notice to both Forest Hills and Chalfont officials of the problem on his property and his plan to excavate in the area. At the very least, there was sufficient testimony for a jury question.


It is defendants' position that plaintiff was contributorily negligent*fn4 as a matter of law and that the Court erred in including the presumption of due care in its charge.

Defendants concede a presumption of due care is afforded one who suffers loss of memory as a result of an accident. However, it is defendants' position that the Court erred in charging on this presumption because it was conclusively rebutted by plaintiff's negligence in violation of the assured clear distance rule which requires a driver to keep his vehicle under sufficient control to allow him to stop within the clear distance ahead. See, The Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81 eff. July 1, 1977, 75 Pa.C.S. § 3361. At the time of the accident, The Vehicle Code, Act of April 29, 1959, P.L. 58, § 1002, 75 P.S. § 1002, was effective.*fn4a

The following portions of the Court's charge are relevant to this issue:

"In other words, it is the Plaintiff's contention that as a result of injuries he has a loss of memory as to events immediately preceding the accident and under our law if he has had that memory loss as a result of injuries sustained in the accident it is presumed that at the time of the accident that the person was using due care for their [his] own safety. However, this is rebuttable. This presumption may be rebutted by evidence. In other words,... if you believe that there was a memory loss due to the accident a presumption of due care arises but this may be rebutted by other evidence in the case and this is a burden that falls upon the Defendant to rebut the presumption of due care. [T. at 680.]

"... [I]n this case both Plaintiff and Defendants are relying upon circumstantial evidence. The Plaintiff is relying upon it to establish in part the events of the accident and the Defendants are relying upon circumstantial evidence to establish contributory negligence. When a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom such evidence in order to prevail must be adequate to establish the conclusion sought and must preponderate in favor of that conclusion so as to outweigh other evidence and reasonable inferences therefrom which are inconsistent therewith." (T. at 682.)

The Court then charged the jury on the assured clear distance rule as it related to defendants' allegations of contributory negligence.*fn5 (T. at 685-689.)

The presumption of due care normally given a decedent, or one who suffers loss of memory due to an accident, is rebuttable by evidence that the person was contributorily negligent. Kmetz Lochiatio, 421 Pa. 363, 219 A.2d 588 (1966); Auel v. White, 389 Pa. 208, 132 A.2d 350 (1957); Dilliplaine v. Lehigh Valley Trust Co., 223 Pa. Super. 245, 297 A.2d 826 (1972), aff'd 457 Pa. 255, 322 A.2d 114 (1974). While this presumption is not evidence and cannot establish negligence on the part of the defendant, it is enough to negate contributory negligence absent positive evidence. Bethay v. Phil. Housing Auth., 413 A.2d 710 (Pa. Super. 1979); Calhoun v. Jersey Shore Hospital, 250 Pa. Super. 567, 378 A.2d 1294 (1977); Sadowski v. Eazor Express, Inc., 213 Pa. Super. 471, 249 A.2d 842 (1968).

To accept defendants' argument on this issue, the Court would, in effect, have to find contributory negligence as a matter of law. As long as there is a jury question on contributory negligence, it is for the jury, not the court, to find that the presumption of due care has been rebutted by evidence of negligence. In addition, defendants' argument is at best a technicality. Defendants have the burden of proof to establish contributory negligence and the presumption of due care given to a plaintiff does no more than place the burden of proof of plaintiff's negligence on the defendants -- where it already rests. Heffernan v. Rosser, 419 Pa. 550, 215 A.2d 255 (1966).

It is well established in this Commonwealth that contributory negligence may only be declared as a matter of law where it "'is so clearly revealed that there is no room for reasonable disagreement as to its existence.' Lavely v. Wolota, 253 Pa. Super. 196, 202, 384 A.2d 1298, 1302 (1978)." Claytor v. Durham, 417 A.2d 1196, 1199 (Pa. Super. 1980).

In the recent case of Bethay v. Phil. Housing Auth., supra, the Court addressed the issue of the presumption as it relates to a decedent's due care and allegations of contributory negligence:

"... [A] decedent is presumed to have exercised due care for his safety and a finding as a matter of law that he was contributorily negligent requires evidence so clear, direct and positive as to preclude any difference in the minds of fair and reasonable men with regard to it. Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 882 (1963). A decedent may not be held contributorily negligent as a matter of law unless the only reasonable inference arising from the evidence shows a want of due care. McNett v. Griggs, 217 Pa. Super. 322, 272 A.2d 202 (1970)." 412 A.2d at 716.

While defendants presented testimony from witnesses who passed by the scene at various times prior to the accident, it is plaintiff's contention that all these witnesses knew the obstruction was in the road. In addition, while there was testimony that the lights on the two sawhorses were visible, the backhoe itself was not lighted and there was no testimony on the visibility of the bucket or at what distance it was visible.

Based upon these factors, we cannot say that the only reasonable inference to be drawn is that plaintiff violated the assured clear distance rule. Both the presumption of due care and the issue of contributory negligence were properly submitted to the jury. McElhinny v. Iliff, 436 Pa. 506, 260 A.2d 739 (1970).



It is the position of all defendants, in support of their motions for a new trial, that the Court erred in excluding opinion testimony of plaintiff's alleged intoxication. The defendant Baille called one William Burchell, a bartender at the Journey's End Bar in Chalfont Borough, who allegedly saw the plaintiff between 12:00 and 1:30 a.m. on the morning of the accident for approximately ten minutes. The Court heard the witness in chambers, outside the hearing of the jury, and ruled that the testimony was not admissible.

Mr. Burchell stated in chambers that, during the time plaintiff was in the bar, his speech was slurred, his walk unsteady and his eyes glassy and that there was sufficient light in the bar for him to make these observations and that, in his opinion, the plaintiff was visibly intoxicated.

Mr. Burchell further testified that he refused to serve plaintiff due to prior orders of the proprietor, based on Mr. Yesko's previous unruly or unacceptable conduct. During the five to ten minutes plaintiff remained in the bar on the morning in question, he accepted Mr. Burchell's decision, purchased drinks for other persons standing (sitting) at the bar, paid for the drinks, handled his money in a normal manner and left a tip for the bartender. Mr. Burchell did not see the plaintiff drinking nor did he smell the odor of alcohol.

The only other record fact was the deposition of Mr. Yesko, himself, that he had had one or two beers in the early evening hours at the Wall Hotel in Wall, Pennsylvania, felt sick, left the hotel and borrowed a friend's truck and drove around the remainder of the evening.

As previously discussed, Mr. Yesko had no recollection of the events prior to the accident and there was no testimony by anyone present at the accident site of evidence of drinking or intoxication and no blood or alcohol tests were taken at the time Mr. Yesko was admitted to the hospital.

It is the position of the defendants that the testimony of Burchell, plus plaintiff's own admissions of drinks consumed at the Wall Hotel, if believed, presented a jury question and should not have been excluded by the Court.*fn6

Pennsylvania law is clear that proof of intoxication is relevant where reckless or negligent operation of an automobile is at issue.However,

"... the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive." Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969).

It is also well established that, while a lay witness may give an opinion on intoxication based upon his/her observations of another, there must be sufficient facts to support the opinion. Jenkins, Pa. Trial Evidence § 4.17.

Despite competent briefs of counsel and numerous appellate decisions, we have not found a case which raises the precise issue of the instant proceedings -- i.e., whether an opinion may be given as to intoxication without independent corroborative facts in the record.

Because of the unduly prejudicial effect of the hint of intoxication of a litigant, reference to a bar or tavern has been excluded, absent evidence of intoxication or excessive alcoholic consumption. Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); Cook v. Phil. Transportation Co., 414 Pa. 154, 199 A.2d 446 (1964); Harvey v. Doliner, 399 Pa. 356, 160 A.2d 562 (1960). Evidence of elevated blood alcohol content alone has been ruled inadmissible. Billow v. Farmers Trust Co., 438 Pa. 514, 266 A.2d 92 (1970); Lehman v. McCleary, 299 Pa. Super. 508, 329 A.2d 862 (1974). Evidence that the person may have taken a drink and that there is an odor of alcohol has also been excluded. Vignoli v. Standard M. Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965). Conversely, evidence has been admitted where alcohol consumption is established over a period of time and is supported by other evidence. Cusatis v. Reichert, 406 A.2d 787 (Pa. Super. 1979).*fn7

In Vignoli, supra, the Supreme Court affirmed the trial court's exclusion of the evidence of two witnesses that defendant's behavior was erratic or peculiar after the accident, that he smelled of alcohol and that he admitted drinking two hours before the accident.

In Couts v. Ghion, 421 A.2d 1184 (Pa. Super. 1980), the most recent Superior Court decision, there was evidence that defendant-motorist had consumed a substantial amount of alcohol, had driven erratically and without using his car lights in the dark, that he smelled of alcohol and had appeared intoxicated immediately after an automobile crash. Based on this evidence, the appellate court held that it was error to exclude results of breathalyzer and blood tests as they related to defendant's state of visible intoxication when served a drink at defendant's bar prior to the accident.

In addition to the appellate decisions dealing with intoxication in negligence actions, there are also a group of cases concerning intoxication in other contexts. In Commonwealth v. Hughes, 480 Pa. 311, 389 A.2d 1081 (1978), a third degree murder case, the Supreme Court sustained the exclusion of testimony wherein the witness testified that the defendant's speech was "slightly slurred", that he "seemed to kinda high step" and that while talking, the individual "swayed like back and forth". The Court found that the observed facts upon which the witness was basing his opinion were equivocal.

In In re Wright, 401 A.2d 1209 (Pa. Super. 1979), the Superior Court reversed the exclusion of evidence by the trial court as prejudicial where two witnesses had observed the individual for a period from 35 to 40 minutes and based their opinion on such prolonged observation.

To summarize briefly, testimony concerning "intoxication" falls into two distinct categories -- i.e., evidence of drinking and opinions based upon sufficient observed facts to support the conclusion of intoxication. Thus, evidence of the consumption of alcoholic beverages cannot be presented to a jury, unless there is sufficient additional evidence which if believed would prove intoxication rendering the individual incompetent to drive a motor vehicle. Testimony that the person took a drink or smelled of liquor or the results of a breathalyzer or blood test to show alcoholic content have all been ruled inadmissible, absent supporting evidence of actual intoxication.

In Cusatis v. Reichert, supra, an intersectional collision, the trial court excluded evidence of alcohol blood content and the Superior Court distinguished between those cases where the blood test was the sole evidence of drinking and where it was supported by other testimony.

The Superior Court stated as follows:

"... While it is true that the supreme court in Billow, when confronted with a defendant having this same amount of blood alcohol --.14 -- ruled the testimony inadmissible, it is crucial to note that the breathalyzer result was there the sole evidence presented to support an inference of intoxication. Such a reading on a breathalyzer might be caused by legitimate medication or chemical substances.Instantly, however, appellants also proferred testimony that Reichert had consumed a considerable amount of alcohol prior to the incident, and had the odor of alcohol about him when the investigating officer arrived at the scene. Taken in its totality, this evidence reveals far more than the mere hint of intoxication condemned as prejudicial in Morreale and Vignoli...." 406 A.2d at 790. (Emphasis added.)

Thus, evidence of drinking is admissible only where additional evidence will support intoxication.

The second group of cases illustrated by Commonwealth v. Hughes, supra, is not solely a matter of evidence of drinking but whether the facts observed by the witness are sufficient to support the witness' opinion of intoxication.

As set forth in Feldman, Pennsylvania Trial Guide #7.18:

"The classic manner of proving intoxication is through the testimony of an eye witness that the person's eyes were blood shot, his speech slurred, his breath alcoholic and his conduct that of a drunk together with the witness' opinion that the person was intoxicated."*fn8

In analagous cases arising under the Motor Vehicle Code, 75 P.S. 624, involving license suspension for refusal to submit to a breathalyzer test, the Commonwealth Court has considered the evidentiary issue of "reasonable grounds" to establish intoxication: Bureau of Traffic Safety v. Shultz, 360 A.2d 754 (Pa. Comwlth. 1976); Com. v. Dreisback, 363 A.2d 870 (Pa. Comwlth. 1976); Corry v. Com., 429 A.2d 1229 (Pa. Comwlth. 1981).

In Corry v. Com.,*fn9 the court stated:

"The presence or absence of an odor of alcohol about a motorist is not the only test of whether there was reasonable ground to believe that the driver was under the influence of drink. It is the driver's behavior and appearance, as observed by the arresting officer, which are to be considered. Corry's uneven stance, his staggering gait, and his combativeness were clearly such as to produce a reasonable belief that he was under the influence of strong drink." 429 A.2d at 1230.

The proposed witness in the instant proceedings was questioned by counsel and the Court in chambers and stated that he observed the plaintiff walking for "approximately 15 feet" (T. at 317), that his walk was staggered, his speech was "slurred" (T. at 317), and his eyes were "glassy" (T. at 318), and that in his opinion the plaintiff was intoxicated (T. at 32-21). The plaintiff was in the bar "maybe 5, 7 minutes maybe 10 at the longest, not long." There was no testimony as to the odor of alcohol or that the plaintiff was served a drink or that his conduct was unruly. In the opinion of the Trial Judge, there were insufficient facts of record to establish the degree of intoxication stated in the opinion of the witness and the Court sustained the objection to the testimony.

The question thus becomes whether an opinion of intoxication based upon a staggered walk, glassy eyes and slurred speech over an observation time of approximately ten minutes are sufficient facts to permit the issue of intoxication to be given to the jury.

In the final analysis, the admissibility of the opinion testimony of Burchell must be governed by the same criteria as any other opinion testimony by a lay witness. In considering the defendants' post-trial motions, we have reexamined the record in these proceedings. While the testimony of Burchell was not corroborated by the testimony of any other witness or by physical evidence*fn10, his statements were clear and unequivocal that, in his opinion, plaintiff was intoxicated at the time he entered the Journey's End Bar. While appellate decisions on evidence of drinking, discussed supra, require supportive testimony of intoxication, there is no present requirement that opinions of intoxication must be supported by the testimony of two witnesses or evidence of drinking or alcoholic odors or that the driver must be observed for a given period of time.*fn11

In comparing Burchell's testimony with the classic description of drunkeness, he clearly stated that three most common elements -- i.e., a staggering walk, described in detail, glassy eyes and slurred speech (cf. Corry v. Com., supra). Under the present status of Pennsylvania law, this proferred testimony was sufficient to raise an issue of fact for consideration by the jury.

While the Trial Judge did not believe the witness and sustained the objection, the issue of credibility is for the jury, not the Court.

Based upon the above discussion, defendants' motion for a new trial is granted.


It is the position of the defendant Boroughs that the Court erred in failing to instruct the jury that a municipality is not an insurer of its roads. However, viewing the charge in its entirety, the jury was properly charged that a municipality could only be found negligent if it had proper notice of the obstruction (T. at 689). In addition, it is clear that a trial judge is not required to use the exact language of a requested point so long as the instructions adequately express the respective views of the parties. McGowan v. Devonshire Hall Apts., 420 A.2d 514 (Pa. Super. 1980).

Defendant Atomatic has also alleged error in the Court's charge that plaintiff was entitled to lost earnings. Given the testimony of plaintiff that his injuries prevented him from working for approximately eight months after the accident, the Court correctly instructed that he would be entitled to wages lost during those eight months if the jury found he "was unable to work as a result and he lost money." (T. at 692.) Such loss could not be based on speculation, but only on evidence in the record. Scott v. Curtis, 200 Pa. Super. 44, 186 A.2d 403 (1962).


Defendants seek to argue that, based upon the physical facts -- i.e., the range of vision on West Street, the lights on two sawhorses, the impact with the backhoe -- plaintiff must have exceeded the 25 m.p.h. speed limit and the assured clear distance rule and that the only reasonable inference is that plaintiff was contributorily negligent.

However, there were sufficient facts to support the jury's verdict -- i.e., the backhoe itself was not lit, the bucket was in shadow and the warning signs were inadequate and conceivably bumped or moved during the evening. The jury was charged on the assured clear distance rule and elected to accept other facts of record.

Based upon the above discussion, it is the opinion of the Court en banc that defendants' exceptions do not provide grounds for judgment n.o.v., but that the motion for a new trial is granted.

An appropriate Order is attached hereto.

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