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JOHN C. KRIVIJANSKI v. UNION RAILROAD COMPANY (09/26/86)

filed: September 26, 1986.

JOHN C. KRIVIJANSKI, ADMINISTRATOR OF THE ESTATE OF MICHAEL E. KRIVIJANSKI, DECEASED, APPELLANT
v.
UNION RAILROAD COMPANY, A CORPORATION. EDWARD H. NASSAN, ADMINISTRATOR OF THE ESTATE OF JEFFREY A. NASSAN, DECEASED, APPELLANT V. UNION RAILROAD COMPANY, A CORPORATION. JOHN C. KRIVIJANSKI, ADMINISTRATOR OF THE ESTATE OF MICHAEL E. KRIVIJANSKI, DECEASED V. UNION RAILROAD COMPANY, A CORPORATION, APPELLANT. EDWARD H. NASSAN, ADMINISTRATOR OF THE ESTATE OF JEFFREY A. NASSAN, DECEASED, V. UNION RAILROAD COMPANY, A CORPORATION, APPELLANT



Appeal from the Judgment in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 81-04152, GD 81-04154, GD No. 81-004152, GD No. 81-04154

COUNSEL

Robin S. Wertkin, Pittsburgh, for appellants in Nos. 989 and 990 and appellees in Nos. 996 and 997.

Gerald C. Paris, Pittsburgh, for appellants in Nos. 996 and 997 and appellees in Nos. 989 and 990.

Tamilia, Kelly and Montgomery, JJ. Montgomery, Judge, dissenting.

Author: Tamilia

[ 357 Pa. Super. Page 198]

These appeals and cross appeals involve two actions which were consolidated for trial. The executors for the respective estates of Michael Krivijanski and Jeffrey Nassan sought damages from the Union Railroad Company under the Pennsylvania Wrongful Death and Survival Acts. (42 Pa.C.S.A. §§ 8301, 8302)

The decedents were involved in a fatal accident while riding motorcycles on a private unpaved road owned by the Union Railroad Company. There were no witnesses to the incident and the cause was disputed at trial. The plaintiffs contended the decedents collided with an unmarked wire cable which the railroad maintained across the road. The railroad disputed this theory and offered alternative explanations for the accident.

Special interrogatories were separately answered by the jury concerning each plaintiff. The responses were indicative of a jury determination that the actions of the railroad constituted willful or wanton misconduct and those of each decedent negligence.

In both instances the jury attributed 60 per cent of the accident to the railroad's conduct and 40 per cent to the decedent with the total damages to the estate and parents

[ 357 Pa. Super. Page 199]

    of each decedent set at $25,000. The court then applied the comparative negligence law (42 Pa.C.S.A. § 7102)*fn1 and molded the verdict to reflect the fault of the parties. After adding delay damages, the court awarded $19,375.00 to each of the plaintiffs.

Appeals and cross appeals filed in each of the actions are presently before us. The appellants/plaintiffs argue the lower court erred in (1) refusing to grant a new trial on the issue of damages because the verdicts were patently inadequate; (2) instructing the jury that the measure of damages in the survival act claim was "accumulations" and (3) refusing to give further clarifying instructions concerning how the jury should compute "total damages". The appellants/plaintiffs also contend the court erred in submitting the issue of the negligence of the decedents to the jury thus invoking the application of comparative negligence.

The cross appellant/railroad asserts trial court error in admitting into evidence the testimony of a police officer concerning a statement made by Jeffrey Nassan and in refusing to grant a mistrial due to the conduct of a plaintiff's witness who had contact with the jury.

Initially, in reviewing the issues raised concerning the amount of damages awarded we find no merit to the

[ 357 Pa. Super. Page 200]

    arguments put forth. Whether to grant a new trial because of the alleged inadequacy of a verdict is a matter within the discretion of the trial court and will be sustained absent an abuse of that discretion. Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90 (1978); Daley v. John Wanamaker, Inc., 317 Pa. Super. 348, 464 A.2d 355 (1983). The court reviewed the evidence presented concerning the earnings potential of the parties and found no basis to disturb the jury's findings. We can find no abuse of discretion in this holding and thus affirm the trial court's action.

In examining the jury charge as a whole, we find the court properly instructed the jury on damages in general and specifically as to lost earnings. Appellant's claims are thus devoid of merit. Kearns v. Clark, 343 Pa. Super. 30, 493 A.2d 1358 (1985); McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972).

We likewise find no merit in cross-appellant's claims of trial court error. We believe the statement made by Jeffrey Nassan to the police officer was properly admitted as part of the res gestae exception to the hearsay rule. The police officer spoke with Jeffrey Nassan at the hospital approximately two hours after the accident. The officer recounted how when he asked Jeffrey "what happened?" he replied "I hit the cable." (N.T. 5/4/84, Vol. I, p. 287) In light of the total circumstances surrounding the statement, particularly the serious nature of the injuries and the physical condition of Jeffrey Nassan at the time, we find it was properly admitted. There was little possibility of this being a self-serving remark based on reflective thought. See Cody v. S.K.F., 447 Pa. 558, 291 A.2d 772 (1972); Thompson v. City of Philadelphia, 222 Pa. Super. 417, 294 A.2d 826 (1972); Commonwealth v. Blackwell, 343 Pa. Super. 201, 494 A.2d 426 (1985).

We also find the court acted properly in refusing to grant a mistrial when it was discovered that a potential witness had made comments to some of the jurors at a restaurant and later in the court room.

[ 357 Pa. Super. Page 201]

The court questioned the potential witness and certain members of the jury in chambers (N.T. 5/3/84, Vol. I, pp. 194-224) and ascertained that nothing was said about the case nor was there any indication that the party was trying to influence the jurors. In addition a cautionary instruction was given. Under these circumstances, a mistrial was properly denied. Printed Terry Finishing v. City of Lebanon, 247 Pa. Super. 277, 372 A.2d 460 (1977); Brancato v. Kroger Co., Inc., 312 Pa. Super. 448, 458 A.2d 1377 (1983).

The single issue on which we do not agree with the lower court is the applicability of the Comparative Negligence Law (42 Pa.C.S.A. § 7102, see footnote 1).

It is clear that the duty owed to a trespasser by a property owner is to refrain from willful or wanton misconduct. Antonace v. Ferri Contracting Co., Inc., 320 Pa. Super. 519, 467 A.2d 833 (1983); Engel v. Friends Hospital, 439 Pa. 559, 266 A.2d 685 (1970); Evans v. ...


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