Bersinger v. Petree

40 Pa. D. & C.3d 1, 1986 Pa. Dist. & Cnty. Dec. LEXIS 336
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJune 25, 1986
Docketno. 83-6665-12-2
StatusPublished

This text of 40 Pa. D. & C.3d 1 (Bersinger v. Petree) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bersinger v. Petree, 40 Pa. D. & C.3d 1, 1986 Pa. Dist. & Cnty. Dec. LEXIS 336 (Pa. Super. Ct. 1986).

Opinion

KELTON, J.,

At issue in this case is whether it was error to admit evidence of a defendant-driver’s intoxication when defendant’s counsel has admitted his client’s negligence and that this negligence caused, at least, some injury to plaintiff. Because we concluded that the evidence was relevant to the jury’s determination of the severity of the impact between defendant’s and plaintiffs vehicles, we find no error.

Plaintiff brought this action for damages sustained when his pickup truck was struck by defendant’s vehicle on September 24, 1981. Plaintiff had stopped on Bensalem Boulevard near Chapman Lane in Bensalem Township, Bucks County, where a school bus was unloading children. Defendant failed to stop and drove his vehicle directly into the rear of plaintiffs pickup. Pretrial, defendant admitted that his negligence had caused the accident. However, defendant did not agree as to the manner in which this accident occurred and also maintained that plaintiffs had not suffered any damages. The jury returned a verdict in favor of plaintiffs in the amount of $40,000. Defendant filed a motion for new trial solely on the issue of damages. We denied the motion and entered judgment on the verdict. Defendant has appealed our decision to the Superi- or Court. Defendant has briefed and raised the following issues:

1. Whether the court erred in allowing testimony as to defendant’s intoxication at the time of the accident;

2. Whether the jury verdict was against the weight of the evidence, was contrary to the court’s [3]*3instructions, or was a direct result of prejudicial testimony of his intoxication;

3. Whether the court erred in not allowing the chart notes of plaintiffs family physician to go out with the jury; and

4. Whether the court erred in the manner in which it responded to a jury question during deliberation.

We will address the issues seriatim.

Defendant first contends that because he had admitted liability pretrial, the admission of evidence relating to his intoxication and unfitness to drive was in error.

It is well settled that when recklessness or carelessness is at issue, proof of intoxication is relevant and admissible when it establishes unfitness to drive. Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956), Emerich v. Carson, 325 Pa. Super. 308, 472 A.2d 1133 (1984). However, mere hints of drinking are inadmissible as being unduly prejudicial. See, e.g., Sentz v. Dixon, 224 Pa. Super. 70, 302 A.2d 434 (1973), and Billow v. Farmers Trust Co., 438 Pa. 514, 517, 266 A.2d 92, 93 (1970).

We do not interpret Fisher v. Dye and its progeny to hold, as defendant suggests, that evidence of intoxication is only admissible when carelessness or recklessness is at issue. Rather, we interpret these cases to mean that evidence of alcohol consumption may be relevant in an automobile accident case (1) when the probative value of this evidence will outweigh any prejudicial effect; (2) when the proponent of this evidence can show through competent evidence that, as a result of this alcohol consumption, one has become unfit to drive; and (3) when such unfitness is relevant to some disputed factual issue.

[4]*4Under our facts, we find that the probative value of evidence of defendant’s intoxication outweighs any prejudicial effect this evidence may have had. It. is well established that the fundamental consideration in determining the admissibility of evidence is whether the proffered evidence is relevant to the fact sought to be proved. Evidence is relevant if it tends to make a fact at issue more or less probable. See Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983).

In the present case, defendant maintained at trial that plaintiff husband’s only damage sustained as a result of this accident was a small cut over his eye. Plaintiffs, however, sought to prove that, due to the violent force of impact, plaintiff husband’s injuries, and most particularly the permanent damage to his lower back, were a direct result of the collision. Thus, defendant’s physical ability to see a stopped school bus and other vehicles 200 feet ahead, his ability to react to the bus and its flashing lights and his ability to decelerate before striking plaintiffs truck were all relevant for the jury’s consideration in determining defendant’s speed at the instant of impact.

Plaintiffs treating physician, Dr. Joseph M. McGuckin, an orthopedic surgeon, testified that based upon the history plaintiff gave him, including the manner in which the accident occurred, and his examination and treatment of plaintiff, it was his opinion that plaintiffs back and neck injuries are a result of the initiating event, meaning the amount of trauma received and one’s physical condition. He stated that:

“The higher the trauma and the worse shape we’re in, the worse we’re going to do. If you have a high trauma and you’re in pretty good shape, you [5]*5would do better . . . (Video deposition of.May 15, 1985 at 29-30.)

Plaintiff testified that when defendant’s vehicle struck the rear of his pickup truck, his truck was pushed into a vehicle in his front and his head was thrown forward then backwards. He stated that he first hit the rearview mirror, which caused a cut above his eye, and then struck his head on the rear window, which forced the glass out of its molding. He then testified that defendant’s vehicle spun around and struck his truck near the left rear tire, which then pushed him across the road and into the guardrail. He stated that with the second impact, he was thrown forward and then diagonally across the cab of the truck and onto the floor underneath the dashboard.

In contrast, defendant’s testimony at trial was that plaintiff had caused the accident by cutting across traffic and driving into his lane. He stated that he hit plaintiffs pickup truck only once, and that plaintiffs testimony at trial was untruthful. Defendant also testified over his counsel’s objection that he had had two beers for lunch at 12:00 p.m., that after work at 2:00 p.m. he consumed four more beers at two different taverns, and that immediately, before the accident he had drank a quart of beer while driving.

The testimony of Frederick J. Goldstein, who holds a Ph.D. in pharmacology and is professor of pharmacology at the Philadelphia College of Pharmacy and Science, was admitted by stipulation. Dr. Goldstein stated that, based upon the fact that a breathalyzer test performed on defendant at 4:55 p.m. on the day of the accident indicated a blood-alcohol content of .19 percent, and based upon defendant’s weight, he opined that defendant’s blood-[6]*6alcohol level at the time of the accident was between .1675 and .2035 percent. He also testified that, at a blood-alcohol level of. 15 percent, a person will exhibit sedation, confusion and impairment of muscle coordination and reaction time, and that these impaired skills would prevent the safe operation of a motor vehicle. He concluded that, in his opinion, within a reasonable degree of scientific certainty, defendant was incapable of satisfactorily operating his vehicle at the. time of the accident.

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Related

Fisher v. Dye
125 A.2d 472 (Supreme Court of Pennsylvania, 1956)
Bortner v. Gladfelter
448 A.2d 1386 (Supreme Court of Pennsylvania, 1982)
Martin v. Soblotney
466 A.2d 1022 (Supreme Court of Pennsylvania, 1983)
Kearns v. Clark
493 A.2d 1358 (Supreme Court of Pennsylvania, 1985)
Reilly v. POACH
323 A.2d 50 (Superior Court of Pennsylvania, 1974)
Worthington v. Oberhuber
215 A.2d 621 (Supreme Court of Pennsylvania, 1966)
BILLOW v. Farmers Trust Co.
266 A.2d 92 (Supreme Court of Pennsylvania, 1970)
Emerick v. Carson
472 A.2d 1133 (Supreme Court of Pennsylvania, 1984)
Wilson v. Pennsylvania Railroad
219 A.2d 666 (Supreme Court of Pennsylvania, 1966)
Sentz v. Dixon
302 A.2d 434 (Superior Court of Pennsylvania, 1973)

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Bluebook (online)
40 Pa. D. & C.3d 1, 1986 Pa. Dist. & Cnty. Dec. LEXIS 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bersinger-v-petree-pactcomplbucks-1986.