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CYNTHIA WHITE v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (10/28/86)

filed: October 28, 1986.

CYNTHIA WHITE, A MINOR BY HER PARENT AND NATURAL GUARDIAN REBECCA STEVENS AND REBECCA STEVENS IN HER OWN RIGHT
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, PHILADELPHIA ELECTRIC COMPANY, AND CITY OF PHILADELPHIA. APPEAL OF SEPTA



Appeal from the Order of December 19, 1984, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4060 August Term, 1979.

COUNSEL

Gary R. Battistoni and Alfred W. Putnam, Jr., Philadelphia, for appellant.

R. David Bradley, Philadelphia, for White, appellee.

Wieand, Beck, and Johnson, JJ. Wieand, J., files a concurring and dissenting opinion.

Author: Beck

[ 359 Pa. Super. Page 126]

Appellant Southeastern Pennsylvania Transportation Authority ("SEPTA") raises three issues on appeal.*fn1 We find none of them to have merit. We, therefore, affirm the judgment of the trial court.

On September 15, 1977, plaintiff-appellee Cynthia White, then twelve years old, was riding home from school on a SEPTA bus. She was on public transportation because of a

[ 359 Pa. Super. Page 127]

    school bus drivers' strike. It was a hot afternoon, the air conditioning on the bus was not working and the windows were open. Miss White sat next to an open window toward the rear on the bus on the right hand side. She rested her arm on the open window track with her elbow protruding about one to three inches out of the bus.

As the bus progressed, a police car approached from the opposite direction with its lights and siren on. The bus swung to the right, possibly mounting the curb, and Miss White's elbow struck a utility pole as the bus passed by. She suffered permanent injuries as a result. She spent nine days in the hospital, underwent the insertion of two metal pins in her elbow, and required an additional nine months of convalescence before she was fully able to care for herself. She is permanently scarred due to tissue loss on her arm.

The jury awarded Miss White $243,000 in damages, but also found that she had been twenty percent (20%) negligent in extending her elbow out of the window of the bus. Therefore the trial court reduced the award by the amount of plaintiff's comparative negligence to $194,000. It also added Rule 238 delay damages of $87,133.81, resulting in a final molded verdict of $281,133.81. SEPTA timely filed a motion for a new trial which the trial court denied. This appeal followed.

The first issue on appeal is whether the trial court committed reversible error in charging the jury on two points. Specifically, SEPTA contends that Judge Kremer's instructions on loss of future earnings or earning capacity and on the Assured Clear Distance Rule (the "Rule") were erroneous. We will consider these two allegations of error in the charge seriatim.

Miss White was still a very young woman at the time of trial. She had the majority of her working life ahead of her. Certain occupations that Miss White had considered pursuing are foreclosed to her due to her injury. For example, she can no longer pursue her ambition of becoming a nurse's aide because the injury to her arm will prevent her from assisting patients who have difficulty walking.

[ 359 Pa. Super. Page 128]

At the time of trial, Miss White worked as a counter assistant at a vision center earning $3.75 per hour.

Because of Miss White's age at the time of her injury, the bulk of her claim for damages was based on lost earnings. SEPTA's allegation of error is that the trial court's instructions may have confused the jury as to how loss of future earnings damages are calculated. Specifically, SEPTA contends that the trial court did not sufficiently explain that a plaintiff's remaining post-injury earning capacity is to be deducted from the earnings she would have gleaned from those occupations she could have pursued absent the injury. Gary v. Mankamyer, 485 Pa. 525, 403 A.2d 87 (1979).

The law in this area is rather commensensical. If a plaintiff had the potential to earn a given amount without the injury and is now limited to a lower paying group of a possible jobs due to the injury, then a jury may award the plaintiff the difference between plaintiff's pre- and post-injury earning potentials. To use a hypothetical, if plaintiff had the potential to earn 5X before the accident but would be unable to earn more than 3X because of her injury, then a proper award would be 2X. Id.; Williams v. Dulaney, 331 Pa. Super. 373, 480 A.2d 1080 (1984).

Following a review of the trial court's charge, we conclude that the jury was adequately instructed as to loss of future earnings damages. As to this issue, the trial court began by stating that "[a] plaintiff is entitled to damages measured by the amounts to which her ability to earn money has been reduced. That is the degree to which her ability to earn money has been reduced." (N.T. 736) (emphasis added). The trial judge reiterated this point later in the charge, stating:

[ 359 Pa. Super. Page 129]

In determining the degree of impairment of future earning capacity, and the amount of future loss, you must ascertain the difference between the yearly amounts which the plaintiff probably would have or could have earned during her work expectancy -- not life expectancy -- and the amounts which she probably would earn during that period of work expectancy. You evaluate Page 129} that which will happen in the future, and that which could have happen (sic) had she not been injured.

(N.T. 741) (emphasis added). The above quoted passages set forth the applicable law in a way that a lay person can readily understand and are obviously correct statements of the law.

SEPTA's true concern as to the charge on future earnings damages appears to be that the charge on this issue was so lengthy, as was the total charge, that these two accurate statements of the law were likely lost in the numerous other instructions the trial judge delivered as to future earnings. As an appellate court reviewing the jury charge, we must remain conscious that a trial judge is given wide latitude when charging the jury. Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966). The fact that a charge is lengthy may only indicate that the judge is consciously fulfilling his/her duty to clarify the instructions so that the jurors are sure to understand the questions they are to decide. Wood v. Smith, 343 Pa. Super. 547, 495 A.2d 601 (1985). We certainly cannot reverse merely because the trial court restated a point several times or because the jury might have been selectively inattentive to the charge.

In this case, the fact that the charge was lengthy does not supplant the accuracy thereof. There is no indication that the jury was confused as to the future earnings damages; they asked no questions nor did they ask to have any portion of the charge explained or repeated. The trial court did not err by providing a detailed charge on a complex topic.

SEPTA's second allegation of error in the charge is that the trial court erred by including any reference to the Assured Clear Distance Rule. As SEPTA frames the issue, "[t]he trial court also committed clear and reversible error in charging the jury on the assured clear ...


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