Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil Division, No. G.D. 83-21860, dated June 12, 1987.
Mark J. Gesk, Pittsburgh, for appellant.
Edward Yurcon, Pittsburgh, for appellee.
Brosky, Johnson and Melinson, JJ.
[ 384 Pa. Super. Page 36]
The appellant, Romaine Hill, was severely injured in an accident while a passenger in an automobile driven by the appellee, Howard Ernest Reynolds. The accident occurred when Reynolds's automobile left the roadway and struck a guardrail. Following a three-day jury trial, the jury found that Hill's injuries were caused by the joint negligence of Hill and Reynolds. Reynolds was found to be seventy percent (70%) negligent and Hill thirty percent (30%) negligent. Damages were assessed at One Hundred Three Thousand Dollars ($103,000.00). Hill's post-trial motions were denied, and this appeal followed.
Essentially, Hill is before this court because she feels her award of damages was inadequate and because she feels that the jury could not have properly found her to have been contributorily negligent. The jury's finding of contributory negligence, if upheld, will of course serve to reduce her award further. Hill states the following five questions on appeal in an effort to secure a new trial, or, alternatively, a new trial on the issue of damages: 1) Under the evidence presented in the case, did the trial court err in charging the jury that Hill could be found contributorily negligent? 2) Did the trial court err as a matter of law by instructing the jury that Hill could be found contributorily negligent in the manner it so stated? 3) Did the trial court abuse its discretion in denying Hill's Motion in Limine, permitting Reynolds's counsel to question Hill concerning the events occurring prior to the accident? 4) Should a new trial be granted on the issue of damages because defense counsel asked Hill on cross-examination whether she was sexually or physically abused as a child? 5) Did the trial court abuse its discretion by permitting a defense vocational expert to testify that Hill is still capable of performing light duty work in contradiction to medical testimony at trial that
[ 384 Pa. Super. Page 37]
she is not able to perform such work?*fn1 Upon review of these questions and the issues that they raise, we affirm the judgment below.
Hill's first two questions on appeal challenge the propriety of the trial court's charge to the jury regarding the issue of Hill's possible contributory negligence.
'Where the accuracy of a charge is in issue, an appellate court must look to the charge in its entirety against the background of evidence in order to determine whether or not error was committed and whether that error was prejudicial to the complaining party.'
Berry v. Friday, 324 Pa. Super. 499, 503, 472 A.2d 191, 193 (1984), (quoting Slavish v. Ratajczak, 277 Pa. Super. 272, 274, 419 A.2d 767, 768 (1980)). We shall look first to the evidence and then to the jury charge itself.
All facts concerning the accident produced at trial arose from two sources: the testimony of Hill on cross-examination and Reynolds's prior admissions read to the jury. Reynolds did not testify at trial nor did two other persons who were passengers in the automobile at the time of the accident.
Reynolds admitted that he was the driver and Hill a passenger of the automobile at the time of the accident. The accident occurred on January 31, 1982 at approximately 6:25 a.m., according to Reynolds's admissions, when the automobile left the roadway and struck a guardrail. Reynolds admitted further that he was inattentive to the road while operating the vehicle and that he failed to have proper control of the vehicle when the accident occurred.
Hill testified on cross-examination that she and a friend met Reynolds and his companion at approximately 10:30 p.m. at an establishment in Monessen, Pennsylvania. Hill and her friend were out for an evening of dancing. Approximately one-half hour later, one among the group suggested
[ 384 Pa. Super. Page 38]
that they all go to Pittsburgh. This they eventually did, Reynolds doing the driving; and they arrived at a Pittsburgh club and stayed there until closing, approximately 2:00 a.m. The quartet then departed to look for another establishment. They stopped at another Pittsburgh location where Hill and Reynolds were able to talk for several hours. Prior to returning to Monessen, the party stopped at a restaurant where Reynolds had something to eat. Approximately ten minutes after the group motored away from the restaurant, Hill, who was the front seat passenger, fell asleep. The next thing Hill remembered was waking to find her feet pinned between the dashboard and the door of the automobile.*fn2
In his charge to the jury, the trial judge gave the following instructions concerning the issue of Hill's possible contributory negligence:
Contributory negligence. While admitting negligence and causation on behalf of the defendant, defendant [Reynolds] claims that plaintiff [Hill] was contributorily negligent. 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 the circumstances then present she failed to exercise reasonable care for her own protection.
If you find that the plaintiff was negligent, you must determine whether the plaintiff's conduct was a substantial factor ...