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CONSTANCE D. COOPER v. CARRIE BURNS (07/11/88)

filed: July 11, 1988.

CONSTANCE D. COOPER, APPELLANT,
v.
CARRIE BURNS, APPELLEE. CONSTANCE D. COOPER, APPELLEE, V. CARRIE BURNS, APPELLANT



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 85-5988.

COUNSEL

John P. Lydon, Pittsburgh, for appellant (at 1144) and appellee (at 1145).

Thomas J. Madigan, Pittsburgh, for appellee (at 1144) and appellant (at 1145).

Brosky, Wieand and Del Sole, JJ. Del Sole, J., files a concurring and dissenting opinion.

Author: Wieand

[ 376 Pa. Super. Page 280]

On February 16, 1984, at or about 1:00 p.m., Constance Cooper was injured in an automobile accident which occurred at the intersection of the Sixteenth Street Bridge and Progress Street in the City of Pittsburgh. Cooper had been travelling in a westerly direction on Progress Street and was approximately halfway through the intersection when her vehicle was struck by another vehicle, operated by Carrie Burns, which had entered the intersection from the Sixteenth Street Bridge. To recover for injuries sustained, Cooper brought an action against Burns. The trial of this action was held before a jury which found that Burns's causal negligence was seventy-five percent and that Cooper's causal negligence was twenty-five percent. The jury determined that Cooper had sustained damages in the amount of $275,000. Thereafter, the trial court molded the jury's findings into a verdict in Cooper's favor in the amount of $206,250. Burns filed post-trial motions for judgment n.o.v. and/or new trial, and Cooper petitioned for the assessment of delay damages. Both Burns's post-trial motions and Cooper's request for delay damages were denied by the trial court. Now, in separate appeals, Burns challenges the trial court's denial of her post-trial motions and Cooper challenges the trial court's refusal to impose delay damages.

Burns's first argument is that the trial court erred when it denied her motion for judgment n.o.v. She contends that the evidence established that plaintiff Cooper had failed to look to her left before entering the intersection. This, it is argued, was negligence on the plaintiff's part which exceeded any negligence on the part of the defendant.

In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine only whether the evidence introduced at trial was sufficient to sustain the verdict. Curran v. Stradley, Ronon, Stevens & Young, 361 Pa. Super. 17, 24, 521 A.2d 451, 454 (1987). See also:

[ 376 Pa. Super. Page 2814]

. A motorist who has the green light must observe the condition at the intersection at the time he enters it to be reasonably assured that his journey will be safe. Smith v. United News Company [413 Pa. 243] 196 A.2d 302, 305 (Pa.1964).

5. A mere cursory glance, not calculated to bring home knowledge of the traffic conditions in the intersection, does not satisfy the requirement of looking. Stevens v. Allcutt [320 Pa. 585] 184 A. 85 (Pa.1936); Bascelli v. Bucci [244 Pa. Super. 347] 368 A.2d 754, 759 (Pa. Super.1976).

8. The Defendant claims that the Plaintiff was contributorily negligent and the Defendant has the burden of proving the existence of such negligence. You must, therefore, determine whether the Plaintiff was negligent, in that as an ordinarily prudent person, under all circumstances then present, she failed to exercise reasonable care for [her] own protection. If you find that Plaintiff was negligent, you must then determine whether Plaintiff's conduct was a substantial factor in bringing about her injury.

9. If you find that Plaintiff's causal negligence was greater than the causal negligence of the Defendant, then the Plaintiff is barred from recovery.

13. If you determine that the Plaintiff's incapacity is or probably will be partial rather than total for any or all of its duration, Defendant is entitled to have deducted the amounts which Plaintiff earns or reasonably could earn during the period of partial disability. 2 Harper & James, The Law of Torts, Section 25.8.

14. The Plaintiff has a duty to mitigate her damages. That is, if the Plaintiff is capable of working, she cannot sit back and incur lost wages. If you find that the Plaintiff was capable of working after the accident, you may not award her lost wages for the period during which she was capable of working. If you determine that

[ 376 Pa. Super. Page 283]

    the Plaintiff has been partially disabled since the accident, you may only award her lost wages equivalent to the difference between what she was earning prior to the accident and what she could earn after the accident.

In reviewing a trial court's instructions to the jury, it is well settled that we must view the court's charge in its entirety to determine whether any prejudicial error has been committed. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984). "A trial court is not required to accept the precise language of points for charge submitted by counsel so long as the issues are defined accurately and the applicable law is correctly reviewed." Spearing v. Starcher, 367 Pa. Super. 22, 29, 532 A.2d 36, 40 (1987). See also: Geyer v. Steinbronn, 351 Pa. Super. 536, 554, 506 A.2d 901, 911 (1986); Fish v. Gosnell, 316 Pa. Super. 565, 580, 463 A.2d 1042, 1050 (1983).

Our examination of the trial court's jury instructions discloses that the jury was adequately and accurately instructed as to plaintiff's duty of care, applicable principles of contributory and comparative negligence, and plaintiff's duty to mitigate damages. Appellant was not prejudiced by the trial court's divergence from the precise language which appellant had requested. There is in the jury instructions no error requiring the grant of a new trial.

At trial, the plaintiff-appellee introduced the testimony of Kathleen Flenner, the director of Occupational Resources Specialists, to show that plaintiff had attempted to find alternative employment after the accident. During this testimony, Flenner stated that the plaintiff had been cooperative and motivated in seeking employment. Appellant contends that the trial court erred in allowing such testimony because it was irrelevant and prejudicial character evidence. We do not agree. The testimony of Kathleen Flenner was offered to show that plaintiff had attempted to mitigate damages. Appellant, throughout the trial, sought to show that the plaintiff had failed to mitigate her damages. Flenner's testimony was relevant to the mitigation of

[ 376 Pa. Super. Page 284]

    damages issue, and the trial court did not err by allowing the testimony.

Dr. David Foss testified as plaintiff's witness via videotape deposition. His deposition had been taken on February 14, 1987, shortly before trial. On the day prior thereto, appellant's counsel learned that plaintiff-appellee would require additional surgery. A supplemental pre-trial statement including this new information was filed on February 14, 1987, immediately prior to the taking of Dr. Foss' deposition. Appellant requested a continuance of the trial, alleging that additional time was needed to prepare for the cross-examination of Dr. Foss and to refute the new evidence. The motion for a continuance was denied. Thereafter, Dr. Foss gave deposition testimony which included references to plaintiff's need for additional surgery. Appellant argues that Dr. Foss' testimony should not have been allowed at trial because it was given in violation of a local rule of discovery and because the trial court had abused its discretion by denying the defense motion for continuance. Appellant contends that Allegheny County Rule 212 limits an expert's testimony to matters which have been ...


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