Appeal from the Order entered in the Court of Common Pleas of Chester County, Civil Division at No. 5 Sept. Term 1982.
Stephen P. Lagoy, West Chester, for appellant.
Alexis Barbieri, Norristown, for appellees.
Cavanaugh, Rowley and Popovich, JJ. Rowley, J., notes his dissent.
[ 378 Pa. Super. Page 74]
This is an appeal from the order of the Court of Common Pleas of Chester County denying post-verdict relief to the plaintiff/appellant, Earl J. Crosby. We affirm.
This case was commenced by the filing of a praecipe for the issuance of a summons in trespass by the plaintiff against the Commonwealth of Pennsylvania, Department of Transportation, and Richard and Dorothy Rickers.*fn1 After service of the summons, a rule was issued upon the plaintiff to file a complaint. A complaint was duly filed alleging that on or about September 5, 1980, at approximately 7:40 p.m., the plaintiff was operating his vehicle on Greenhill Road in the Township of West Goshen, a public highway, owned, controlled and maintained by the Commonwealth of Pennsylvania.
At the time and place stated, it was averred by the plaintiff that an unidentified vehicle being driven in the opposite direction to his, entered and encroached upon his lane of travel, thereby causing the plaintiff to drive his vehicle to his right and off the paved road and onto the Rickers' property. His vehicle came to rest after travelling approximately 100 feet and striking a tree and utility pole.
At trial, the allegations contained in the complaint were testified to by the plaintiff. As is relevant herein, additional evidence was produced by the Commonwealth which showed that the police arrived on the scene within three (3) minutes of the accident and detected an "odor of alcohol" emanating from the plaintiff as he sat semi-conscious in his vehicle awaiting emergency treatment.
[ 378 Pa. Super. Page 75]
Once the plaintiff arrived at Chester County Hospital, within five (5) to ten (10) minutes thereafter, blood was drawn from the victim. A serum test was completed by 8:30 p.m., with the results reading 123.4 mg/dL. With the aid of the Commonwealth's toxicologist/expert, the test results were interpreted to indicate the presence of .101% ethol alcohol in the plaintiff's blood at the time of the accident. Further, the toxicologist opined that a .101% blood-alcohol level in an individual renders him/her unfit to operate a motor vehicle safely because of the impairment of one's vision, judgment and perception/reaction.
With the plaintiff's presentment of his case, he was unable to recall whether he had consumed any alcohol on the day in question. His mother, who testified to seeing him approximately thirty (30) minutes prior to the accident, did not notice whether her son was inebriated or smelled of alcohol.
Following the entry of a jury verdict, in which the plaintiff was found to be 70% contributorily negligent and the Commonwealth 30% negligent, post-trial motions were filed and denied by order dated May 27, 1987. The plaintiff's effort to seek leave to amend, by petition, ...