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decided: June 20, 1989.


Appeal from Common Pleas Court, Luzerne County, Honorable Bernard J. Podcasy, Judge.


James R. Moyles, Deputy Atty. Gen., Torts Litigation Section, Harrisburg, for appellant.

Joseph J. Ustynoski, Morton J. Gordon, Ustynoski, Sharkey & Marusak, Hazleton, for Martin DiBuono and Lydia DiBuono.

John D. Nardone, Thomas B. Helbig, Hourigan, Kluger, Spohrer & Quinn, P.C., Wilkes-Barre, for appellee, A. Barletta & Sons, Inc.

Howard A. Berman, Wilkes-Barre, for appellee.

Craig and McGinley (p.), JJ., and Narick, Senior Judge. McGinley, J., dissents.

Author: Narick

[ 127 Pa. Commw. Page 4]

The Department of Transportation (Appellant) has appealed from the denial of its post-trial motions for either a judgment notwithstanding the verdict or a new trial following a jury verdict in favor of Appellees Martin*fn1 and Lydia DiBuono and A. Barletta & Sons, Inc.*fn2

On October 31, 1980 at approximately 11:30 p.m., Martin DiBuono was seriously injured while traveling along Interstate 80 when the tractor-trailer he was driving flipped over a bridge parapet and fell 75 feet into the creek below the bridge. Interstate 80 was under construction at the time and the left lane was closed to traffic. Traffic was diverted to the right lane and, eventually, due to the positioning of the barrels used to channel traffic into the right-hand lane, to a portion of the right-hand berm. Appellee was traveling half in the right lane, half upon the berm as he approached the bridge over the Nescopeck Creek. The construction area was poorly lit. The berm abruptly ended at the bridge, which DiBuono did not see until he was upon it. He steered to the left to avoid the parapet and, although he managed to do so with the tractor, his trailer hit the parapet, causing the vehicle to flip. Appellee sustained two fractured leg bones, fractured ribs and a ruptured spleen which was surgically removed.

Following a jury trial, the jury entered a verdict (molded to $273,000) against Appellant alone. The jury absolved Appellant's contractor, Appellee Barletta, and various subcontractors from liability and found that Appellee was ten percent comparatively negligent.

Following the denial of its post-trial motions, Appellant appealed to this Court, where it raises six issues for our review. We shall address these issues in the order raised, being mindful that our scope of review is narrow: when considering a motion for judgment notwithstanding

[ 127 Pa. Commw. Page 5]

    the verdict, we are concerned only with determining whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference to be drawn from the evidence and rejecting all unfavorable testimony and inferences. Cabell v. City of Hazleton, 96 Pa. Commonwealth Ct. 129, 506 A.2d 1001 (1986). Further, in reviewing the trial court's denial of Appellant's motion for a new trial, we will not disturb the court's ruling absent either an error of law which controlled the outcome of the case or an abuse of discretion where the ruling turns upon the weight of the evidence. Id.

Appellant first argues that the evidence adduced at trial was inconsistent with the verdict and that the trial court erred in failing to grant a judgment notwithstanding the verdict. In support of its argument, Appellant cites various passages from Appellee's cross-examination testimony. We have carefully reviewed the entirety of Appellee's testimony and find, when this testimony is viewed in the light most favorable to Appellee, that it contains ample support for the verdict entered.

Appellant's second argument is that Appellee's engineering expert, John Finn, lacked an adequate factual foundation for his opinion, because he did not know precisely what traffic control measures had been utilized at the accident site. From our review of Mr. Finn's testimony, however, it is clear that he based his opinion upon Appellee's description of the scene. When an expert has not personally observed the scene of an accident, he is nonetheless permitted to express his opinion regarding the cause of the accident if he answers hypothetical questions based upon assumptions which the jury would be warranted in finding as facts from the evidence presented. Houston v. Canon Bowl, Inc., 443 Pa. 383, 278 A.2d 908 (1971).

Appellee testified that, as he approached the bridge, there were barrels to his left used to direct traffic to the right-hand lane. Several of these barrels were out of line and extended into the right-hand lane itself, causing him to use

[ 127 Pa. Commw. Page 6]

    a portion of the highway berm. Appellee further testified that there were no barrels to his right. It was precisely this lack of a channelizing device on the right-hand side which Mr. Finn found to be a cause of the accident. Mr. Finn was of the opinion that traffic could have been more safely routed across the bridge between the concrete barrier on the left and the bridge parapet on the right had there been a channelizing device on the driver's right to indicate that the berm would come to an end at the bridge parapet, which, itself, should have been marked with a reflective device.

During the course of his testimony, Mr. Finn referred to photographs of another construction site to illustrate what he considered to be proper traffic controls. Although the pictures he referred to were taken three years after the accident at issue, Mr. Finn specifically noted that the ...

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