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WILLIAM EMERICK AND MARIE EMERICK v. ROGER MARTIN CARSON (02/24/84)

filed: February 24, 1984.

WILLIAM EMERICK AND MARIE EMERICK, APPELLANTS,
v.
ROGER MARTIN CARSON



No. 1152 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Action - Law, No. 78-13095-12-2

COUNSEL

Stephen B. Harris, Warrington, for appellants.

Louise Herzel-Betz, Philadelphia, for appellee.

Rowley, Popovich and Montgomery, JJ.

Author: Montgomery

[ 325 Pa. Super. Page 310]

Plaintiff-Appellants, William Emerick and Marie Emerick, instituted this action in trespass seeking to recover damages for injuries sustained by William Emerick when he was struck by an automobile driven by the Defendant-Appellee, Roger Martin Carson. The jury which considered the evidence attributed 70% of the causal negligence to Appellant William Emerick and 30% of the causal negligence to Appellee. Because the jury found Appellant's negligence to be greater than Appellee's, a recovery was

[ 325 Pa. Super. Page 311]

    denied and the jury did not address the issue of damages. Appellants filed this appeal from the Order of the lower court dated April 5, 1982, which denied Appellants' motion for new trial and overruled Appellants' objection to the trial transcript.

The evidence of record established that on October 4, 1978, William Emerick was a passenger in an automobile driven by William Flanagan that became disabled in a ditch when Mr. Flanagan attempted to back around a corner. The car was positioned in such a manner that its rear wheels were in the ditch and its front end was perpendicular to the road. Because it was a wet, foggy night, Appellant and Flanagan stood alongside the car to warn passing motorists of the hazard. Just before midnight, Mr. Carson was driving to work when he came around the corner and saw Mr. Emerick standing in front of the car near the center of the road. The Appellee applied his brakes in an attempt to stop but struck both Appellant and the disabled vehicle, causing severe injuries to both of Mr. Emerick's legs. Upon admission to Quakertown Hospital, the Appellant stated that he had "quite a bit to drink" about one-half hour before the accident. A blood test taken two or three hours after the accident revealed his blood alcohol level to be .185%.

Appellants first contend that the lower court erred in permitting an expert witness for the defense to testify when the expert's identity had not been disclosed in answers to interrogatories prior to trial. Pennsylvania Rule of Civil Procedure 4003.5(a)(1) states:

(1) A party may through interrogatories require

(a) Any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and

(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the ...


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