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CHARLES W. HAWTHORNE v. DRAVO CORPORATION (02/21/86)

filed: February 21, 1986.

CHARLES W. HAWTHORNE, SR., ADMINISTRATOR OF THE ESTATE OF RICHARD DANIEL HAWTHORNE, DECEASED
v.
DRAVO CORPORATION, KEYSTONE DIVISION, APPELLANT AND BOROUGH OF INDUSTRY. CHARLES W. HAWTHORNE, SR., ADMINISTRATOR OF THE ESTATE OF RICHARD DANIEL HAWTHORNE, DECEASED, APPELLANT V. DRAVO CORPORATION, KEYSTONE DIVISION AND BOROUGH OF INDUSTRY



Appeals from Judgment of the Court of Common Pleas, Civil Division, of Beaver County, No. 1875 of 1976.

COUNSEL

Oran W. Panner, Beaver, for appellant (at 42) and for appellee (at 69).

John A. Miller, Beaver, for appellant (at 69) and for appellee (at 42).

Wieand, Del Sole and Hester, JJ.

Author: Wieand

[ 352 Pa. Super. Page 364]

During the early morning hours of November 11, 1974, Richard D. Hawthorne drowned when the car he was driving plunged into the Ohio River in an area then being dredged by the Dravo Corporation (Dravo). The administrator of Hawthorne's estate commenced wrongful death and survival actions against Dravo. He alleged that Dravo, in dredging too close to the shoreline, had negligently created a drop-off into deep water without warning. Dravo caused the Borough of Industry to be joined as an additional defendant. A first trial resulted in the entry of a compulsory non-suit which this Court, on appeal, reversed. See: Hawthorne v. Dravo Corp., 313 Pa. Super. 436, 460 A.2d 266 (1983). A second trial resulted in a jury verdict in favor of the decedent's estate and against Dravo in the

[ 352 Pa. Super. Page 365]

    amount of one million dollars.*fn1 After post-trial motions had been denied, the trial court molded the verdict by adding delay damages of $224,381.43, and interest in the amount of $40,855.78. Judgment was entered on the molded verdict. Both parties appealed. Dravo alleges various trial errors which we will consider seriatim. The estate argues that the trial court's award of delay damages was inadequate.

Dravo contends initially that the verdict was against the weight of the evidence.

[T]he decision to either grant or deny a motion for new trial [on grounds that the verdict was against the weight of the evidence] is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion . . . . Our Supreme Court has held that a new trial should be granted only where the verdict is so contrary to the evidence as to shock one's sense of justice. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970). A new trial should not be granted where the evidence is conflicting and the jury might have found for either party, nor where the trial judge would have reached a different conclusion on the same facts.

Myers v. Gold, 277 Pa. Super. 66, 69, 419 A.2d 663, 664 (1980). See: Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); Brown v. McLean Trucking Co., 434 Pa. 427, 256 A.2d 606 (1969); Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505 (1951); Buck v. Scott Township, 325 Pa. Super. 148, 472 A.2d 691 (1984); Mattox v. City of Philadelphia, 308 Pa. Super. 111, 454 A.2d 46 (1982); Eldridge v. Melcher, 226 Pa. Super. 381, 313 A.2d 750 (1973).

In the instant case the evidence showed that on the evening of November 10, 1974, decedent, accompanied by his girlfriend, Betsy Wardle, and two other passengers, drove a borrowed vehicle around Beaver County and into West Virginia. At approximately midnight, decedent drove to an area on the north bank of the Ohio River known as

[ 352 Pa. Super. Page 366]

Maude's Landing in the Borough of Industry. Upon arriving, decedent parked the vehicle within six inches of the water's edge, facing the river. The group remained there for a brief period before making ready to depart. As decedent attempted to shift the engine's standard transmission into reverse, the vehicle drifted forward, entered the river and suddenly plunged into deep water. The three passengers were able to escape through a rear window of the automobile; however, decedent was unable to escape and drowned.

For many years prior to September, 1974, the area known as Maude's Landing had been used by members of the public, including the decedent, to launch boats, wash cars, and for swimming, fishing and other recreational activities. Prior to Dravo's dredging activities, the river bottom adjacent to Maude's Landing sloped gradually from the shoreline toward the center of the river for a distance of between thirty and fifty feet. In late September, 1974, Dravo began its dredging activities in the vicinity of Maude's Landing. Its operations had been authorized by two dredging permits, one having been issued by the United States Department of the Army Corps of Engineers and the other by the Pennsylvania Department of Environmental Resources. The dredging caused the creation of a steep drop-off into deep water at or near the river's edge.

Dravo did not deny these facts. It argued, however, that its dredging operations had been conducted consistently with its permits and in agreement with the limitations and restrictions thereof. Dravo also introduced evidence that, prior to the accident, its employees had erected a cable across the area of Maude's Landing which extended for almost the entire length of the cleared area at the shoreline. Attached to this cable, according to Dravo's evidence, were three large signs warning "Danger, Deep Drop Off." Hawthorne's evidence was to the contrary. Betsy Wardle testified that she did not see any such cable or signs at Maude's Landing on the night of the accident. In addition, Paul Walton, Jr., a former Dravo employee, testified that no

[ 352 Pa. Super. Page 367]

    warning signs had been erected until after decedent's death. Indeed, neither cable nor warning signs were found in the area immediately following the accident.

Dravo's evidence that the dredge boat and barges were parked between fifty and eighty feet offshore from Maude's Landing and were fully lighted and visible from the shore was also contradicted by Hawthorne's evidence. Betsy Wardle testified that she did not see either dredge or barges on the night of the accident because the lights on the dredge were not lit. William Tichy, a member of the Industry Volunteer Fire Department, who arrived at the scene after emergency crews had been called, testified that he did not observe that the dredge had been parked offshore until it was brought to his attention by another person.

Given the conflicting nature of the evidence, it cannot be said that the trial court palpably abused its discretion when it determined that the jury's verdict was not contrary to the weight of the evidence so as to require a new trial. A jury could have found from the evidence that Dravo knew or should have known of the use which had been made of the shore area at Maude's Landing and that Dravo was negligent in failing to give warning of the sharp drop-off which its dredging operations had created. In the absence of such warning, the jury could have further found that the decedent had not been guilty of contributory negligence in parking the vehicle close to the water's edge and in allowing it to drift forward into the water for a short distance as he attempted to put the transmission into reverse. Even though the decedent may have known that Dravo was conducting dredging operations offshore, the jury was not required to find that he was aware of the invisible drop-off which had been created close to the shoreline. Thus, the jury's verdict regarding the absence of contributory negligence was not shocking to the judicial conscience.

Dravo contends that it was error for the trial court to instruct the jury that there was a presumption that the

[ 352 Pa. Super. Page 368]

    decedent had been exercising due care for his own safety at the time of the accident. The existence of such a presumption is unquestionably a part of the common law of this Commonwealth. See: Groh v. Philadelphia Electric Co., 441 Pa. 345, 271 A.2d 265 (1970); Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963); Rowles v. Evanuik, 350 Pa. 64, 38 A.2d 255 (1944); Yandrich v. Radic, 291 Pa. Super. 75, 435 A.2d 226 (1981). Dravo urges us to conclude, nevertheless, that the presumption has outlived its usefulness and should be abandoned.

The primary purpose of a court's charge to the jury is to apprise the members of the jury, in an understandable manner, of the legal principles by which they must decide the case. The law is well settled that the trial court is not required to use any prescribed language in performing this function. Indeed, for a party "to be entitled to a new trial [on the basis of erroneous jury instructions], the instructions complained of must be fundamentally in error, and it must appear that the erroneous instructions might have been responsible for the verdict." McCann v. Amy Joy Donut Shops, 325 Pa. Super. 340, 342, 472 A.2d 1149, 1150 (1984) (en banc). A new trial is also appropriate where the instructions, although perhaps not erroneously stating the law, have misled or confused the jury. See: Takach v. B.M. Root Co., 279 Pa. Super. 167, 420 A.2d 1084 (1980); McEwan v. Yellow Cab Co., 182 Pa. Super. 219, 126 A.2d 816 (1956). The presumption of a decedent's exercise of due care may not be the clearest method of apprising the jury that the party asserting the negligence of a decedent bears the burden of proving it and may indeed have outlived its usefulness. See: Yandrich v. Radic, supra, 291 Pa. Super. at 83, 435 A.2d at ...


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