Stong v. Commonwealth, Department of Transportation

817 A.2d 576

• Court: Commonwealth Court of Pennsylvania
• Decided: February 24, 2003
• Status: Published

Opinions

OPINION BY

Judge SIMPSON.

Marsha Stong (Plaintiff) and the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) appeal the order of the Court of Common Pleas of Lycoming County (trial court), which, following a jury verdict in favor of defendants PennDOT and Sabrina Day (Day), granted, in part, Plaintiffs post-trial motions and ordered a new trial as to Penn-DOT. PennDOT challenges the trial court’s award of a new trial. Plaintiff challenges the demal of her motion for a new trial as to Day.

This matter arises out of a car-pedestrian accident between Robert Stong (Son) and an automobile driven by Day. The accident occurred on a bridge owned by PennDOT. Plaintiff filed a wrongful death and survival action against PennDOT and Day seeMng damages.

On September 4, 1998, Son was walking home from school. Son stopped on the bridge.¹ As he stood on the east side of the bridge, leaning over the railing, two vehicles approached from opposite directions. Day’s vehicle traveled north in the lane closest to Son. As the vehicles passed each other, Son moved from his position, turned away from Day’s vehicle and raised his leg to take a step. At that point, he collided with Day’s vehicle, was propelled onto the hood, struck the windshield, and was thrown 40 feet in the air. The impact resulted in his death.

A four day jury trial was held. At trial, Plaintiff presented testimony of several witnesses. John Counts, an eyewitness to the accident, testified by deposition. Counts explained the bridge has two traffic lanes and a guardrail, but no shoulder or pedestrian walkway. Prior to the accident, Counts observed Son leaning over the railing of the bridge looking down into the water. When Day’s vehicle approached, Son rose quickly, turned counter-clockwise and began to step into the road. As he turned toward the roadway, Son walked into the side of Day’s vehicle. Son collided with Day’s vehicle before completing a full step. Counts noted that Day’s vehicle did not slow prior to impact.

State Police Officer Arthur Paul Wilson, the investigating officer, interviewed Day immediately after the accident and noted her responses. Referring to his notes, Wilson testified Day saw Son with his back to the roadway as her vehicle approached. Day estimated her speed at approximately 40 miles per hour. Day slowed and attempted to move to the left as she crossed the bridge, but she was limited by a vehicle traveling in the opposite direction. When Day’s vehicle reached Son, he stood up, turned counter-clockwise and walked into her vehicle.

Tammy Hamilton, a front seat passenger in Day’s vehicle, testified Day did not swerve or brake prior to impact. She noted that Son was looking down into the water before the accident. Hamilton stated that as Day’s vehicle approached, Son turned counter-clockwise toward the roadway. She further testified that Day did not see Son prior to the accident because after the accident, Day was unaware it had occurred.

Day explained that she traveled the bridge frequently for approximately two years. On the day of the accident, she approached the bridge traveling 42 miles per hour. As she approached, she saw Son leaning over the railing, and lightly applied her brakes. When Day arrived at the bridge she saw another vehicle approaching from the opposite direction. She stated that when Son turned from looking into the creek, he turned away from her. Day conceded that if she applied her brakes when she first saw Son, she probably would have avoided the collision.

Plaintiff also presented expert testimony by Lance Robson P.E., a civil engineer. Robson testified the bridge’s lanes and shoulders are too narrow to comply with PennDOT standards. Robson further testified that PennDOT recognized the bridge was a hazard as of 1985. He opined that the narrowness of the bridge restricted Son’s reaction time as Day’s vehicle approached. Therefore, the narrow shoulder of the bridge directly related to the impact.

The trial court conducted a site view of the bridge, which enabled jurors to walk across the bridge, observe the bridge and view the highway approach to the bridge.

Ultimately, the jury returned a verdict in favor of both defendants. In response to special verdict questions, the jury found PennDOT negligent, but found its negligence was not a substantial factor in causing Son’s death. The jury found Day not negligent.

Plaintiff filed post-trial motions seeking a new trial on the grounds the verdict was against the weight of the evidence. Plaintiff further argued the trial court improperly charged the jury regarding Son’s comparative negligence. The trial court granted Plaintiffs motion for new trial as to PennDOT, but denied her motion as to Day. Both PennDOT and Plaintiff appealed. These appeals were consolidated for review.

Where a trial court orders a new trial because the weight of the evidence does not support the jury’s findings, we review the record to determine whether the trial court palpably abused its discretion. Morrison v. Dep’t of Pub. Welfare (Woodville State Hosp.), 538 Pa. 122, 646 A.2d 565 (1994). A new trial is properly granted where the jury’s verdict is so contrary to the evidence it shocks one’s sense of justice. Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). “A new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice [and not] where the evidence is conflicting [or] where the trial judge would have reached a different conclusion on the same facts.” Davis v. Mullen, 565 Pa. 386, 773 A.2d 764, 766 (2001), quoting Henery v. Shadle, 443 Pa.Super. 331, 661 A.2d 439, 441 (1995), allocatur denied, 542 Pa. 670, 668 A.2d 1133 (1995). When the record discloses conflicting evidence, the new trial order must be reversed because the trial court improperly invaded the province of the jury. Mammoccio v. 1818 Market P’ship, 1999 Pa.Super. 144, 784 A.2d 23 (Pa.Super.1999).

I. PennDOT’s appeal

PennDOT contends a new trial wras improperly granted because the jury’s findings are supported by the evidence. PennDOT argues the trial court improperly invaded the province of the jury because the parties presented conflicting evidence, requiring a credibility determination. PennDOT further asserts it was reasonable for the jury to find the narrowness of the bridge was not a substantial factor in causing the accident.

In Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000), our Supreme Court, speaking through Madame Justice Newman, restated our standard and scope of review of a trial court order granting or denying a new trial.² Our review of a challenge to a new trial order begins with an analysis of the underlying conduct or omission by the trial court that formed the basis for the motion. Id.

When responding to a request for new trial, the trial court must follow a two-step process. First, it must decide whether one or more mistakes occurred at trial. Id. Second, if the court concludes a mistake occurred, it must determine whether the mistake was a sufficient basis for granting a new trial. Id. The harmless error doctrine underlies every decision to grant or deny a new trial. Id. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate prejudice resulting from the mistake. Id.

As an appellate court, to review the two-step process of the trial court for granting a new trial, we also employ a two prong analysis. Id. First, we examine the decision of the trial court that a mistake occurred. At this first stage, we must apply the correct scope of review based on the rationale given by the trial court. Id. There are two possible scopes of review to apply when appellate courts are determining the propriety of an order granting or denying a new trial. Id There is a narrow scope of review: “[w]here the trial court articulates a single mistake (or a finite set of mistakes), the appellate court’s review is limited in scope to the stated reason, and the appellate court must review that reason under the appropriate standard” Id. (Citations omitted).

[Conversely,] [i]f the trial court leaves open the possibility that reasons additional to those specifically mentioned might warrant a new trial, or orders a new trial ‘in the interests of justice,’ the appellate court applies a broad scope of review, examining the entire record for any reason sufficient to justify a new trial.

Id. (citations omitted). Even under a narrow scope of review, the appellate court might still need to examine the entire record to determine if there is support for any of the reasons provided by the trial court. Id.

The appropriate standard of review also controls this initial layer of analysis. If the mistake involved a discretionary act, the appellate court will review for an abuse of discretion. Id. If the mistake concerned an error of law, the court will scrutinize for legal error. If there were no mistakes at trial, the appellate court must reverse a decision by the trial court to grant a new trial because the trial court cannot order a new trial where no error of law or abuse of discretion occurred. Id.

Here, the trial court opined:

Listening to the witnesses during the course of the trial and considering the evidence carefully, as the charge was prepared and delivered to the jury, it became apparent the jury could reach a verdict on the issue of negligence that would either favor plaintiff against both defendants or against one of them or would completely favor defendants because the jury had several fact issues to resolve. However, once negligence was established, this court cannot understand under the facts and the law as to how such negligence could not be a substantial factor in causing the accident and resulting death of [Son].

Stong v. Dep’t of Transp., 56 Pa. D. & C. 4th 524, 544-45 (C.P. Lycoming 2001). However, the trial court further stated,

It is certainly possible in this case that the jury determined that Penn-DOT’s negligence was not a substantial factor because they looked ahead to the issue as to whether the child himself was negligent. There was certainly sufficient evidence in this case to indicate [Son] was negligent in not keeping an appropriate lookout for traffic, and that he may also have been negligent in not stopping on the bridge to look, and in not walking only within the 15-Jé inches allotted for the walkway, and in sticking his leg across the fog line and coming into contact with Day’s automobile.

Id. at 549. (Emphasis added.). Therefore, the trial court acknowledged the jury could have found Son’s conduct was the sole substantial factor in causing his harm. This is a reasonable theory which is supported by the evidence.

We must consider the evidence in the light most favorable to the verdict winner. Bey v. Sacks, 789 A.2d .232 (Pa.Super.2001). Credibility determinations are within the sole province of the jury. Yacoub v. Lehigh Valley Med. Assoc., P.C., 805 A.2d 579 (Pa.Super.2002) (physicians found negligent, but negligence not a substantial factor, defense verdict affirmed). Accordingly, a jury may believe all, part or none of the evidence presented. Martin. Further, the jury can believe any part of a witness’ testimony they choose, and disregard any portion they disbelieve. Id. Here, because the witnesses presented conflicting versions of the cause of the accident, it was the jury’s function to render a credibility determination. Yacoub.

The record here contains sufficient causation evidence upon which the jury could conclude Son’s own negligence was the sole substantial factor in causing his harm. Day stated to Officer Wilson that, as her vehicle approached, Son stood up, turned counter-clockwise and stepped toward the road into the side of her car. Reproduced Record (R.R.) at 27a. Day further explained that she slowed and attempted to move to the left as she crossed the bridge, but was limited by a vehicle traveling in the opposite direction. John Counts, an independent witness testified when Day’s vehicle approached, Son stood up, turned counterclockwise and started to step into the road. He stated “[Son’s] leg probably crossed into the roadway as he took his step and ... walked right into the fender of the car.” R.R. at 15a. Counts further stated if Son did not cross the fog line, he would not have been struck. R.R. at 18a. Moreover, both Counts and Day testified Son never looked in the direction of Day’s vehicle before stepping into the roadway.

The jury also examined the bridge firsthand during their site view. The view enabled the jury to understand the testimony at trial and to weigh conflicting testimony and other evidence. Lobozzo v. Adam Eidemiller, Inc., 437 Pa. 360, 263 A.2d 432 (1970). The view provided the jury the opportunity to evaluate the accuracy and credibility of the evidence presented at trial, and to resolve conflicts in the testimony. Id.

Based on the testimony and the site view, the jury could have found Son’s own negligence was the sole substantial factor in causing his harm. The trial court, however, concluded the narrowness of the bridge was a substantial factor. Specifically, the trial court opined the bridge’s narrow width, coupled with its lack of shoulders and pedestrian walkways, caused the accident. The trial court, however, was not at liberty to reassess the evidence and make its own credibility determinations simply because it would have reached a different conclusion. Davis. The trial court abused its discretion by disregarding the jury's credibility determinations and substituting its own.

Also, the trial court posited a jury mistake: the jury “looked ahead” to the issue of comparative negligence. We discern, however, no mistake in the jury’s responses to special interrogatories. Initially, we note the interrogatories themselves comply with the suggested format. Pennsylvania Suggested Standard Jury Instructions § 3.03A. The jury is required to assess both negligence and causation of defendants first. Id. That occurred here. The jury addresses comparative negligence only when it finds a defendant negligent and that negligence a substantial factor in causing the incident. Id. That did not occur here. Assuming the jury found Son’s conduct the sole substantial causative factor, there is no mistake evident in the order or content of its answers to special interrogatories. As such, the trial court abused its discretion by granting a new trial absent a mistake. Harman; see James v. Nolan, 418 Pa.Super. 425, 614 A.2d 709 (1994) (jury’s findings that defendant negligent, but not a substantial factor were not inconsistent; jury could have found plaintiffs own conduct was sole substantial factor in causing harm).

As we agree with the trial court’s conclusion that the jury could find “that Penn-DOT’s negligence was not a substantial factor,” we hold that the jury’s verdict was not so contrary to the evidence so as to shock our sense of justice. Nor has our examination of the entire record disclosed a mistake at trial. Accordingly, we reverse and reinstate the jury’s verdict as to PennDOT.

II. Plaintiffs Appeal

A.

Plaintiff contends the trial court erred by denying her motion for a new trial as to Day because the evidence established Day’s actions constitute negligence as a matter of law. Plaintiff further argues there is a complete lack of evidence exculpating Day from liability.

The issue of whether a party is negligent is a question for the jury. Duquesne Light Co. v. Woodland Hills Sch. Dist., 700 A.2d 1038 (Pa.Cmwlth.1997). The mere occurrence of an accident does not establish a defendant’s negligence. Id. It is within the province of the jury to determine the reasonableness of each party’s actions and to reconcile conflicting statements. Seewagen v. Vanderkluet, 338 Pa.Super. 534, 488 A.2d 21 (1985).

In support of its denial of a new trial as to Day, the trial court reasoned:

[t]he jury resolved the factual issues relating to ... Day ... to indicate that she did not act in a negligent way in operating her vehicle. This determination was based on substantial evidence to that effect. Under the evidence as presented to the jury, the jury could have concluded one of several factual scenarios, including: (a) that Sabrina Day never saw the child until she struck him; (b) that she saw the child as she testified, but took little or no evasive or precautionary action to avoid striking the child; [or (c) ] she saw the child. She braked lightly and moved as far to the left as she could without striking the other car and in doing so drove prudently as a reasonable driver would under the circumstances ... Obviously the jury chose the latter or a variant thereof, which they were entitled to do....

Stong v. Dep’t of Transp., 56 Pa. D. & C. 4th at 553-54. Under any of these circumstances, the jury had to determine the reasonableness of Day’s actions. Therefore, a credibility determination was required. Based on the jury’s findings, the trial court opined:

[Day’s] testimony clearly permitted the jury to conclude that she saw the child and took note of his position, which at that point, was not necessarily one of peril. That as she proceeded across the bridge, she did so in an appropriate manner moving as far as she reasonably could to the left and away from the position of the child on the bridge, with her moving to the left being limited due to an approaching automobile and the narrowness of the bridge. The jury had a chance to view the bridge and the approaches and the amount of time that Defendant Day as the driver would have to observe and make such judgments. The evidence and the testimony was sufficient to support the finding Ms. Day acted prudently.

Id. at 555.

Credibility determinations are within the sole province of the jury. Yacoub. As such, the jury was free to believe any or all of Day’s testimony. In this regard, the trial court noted, “[t]he jury must have accepted the credibility of defendant Day as she gave her testimony. The court observed that while Ms. Day’s testimony was brief and to the point, she nevertheless delivered it in a convincing way.” Stong, 56 Pa. D. & C. 4th at 555. Clearly, the jury findings are not so contrary to the evidence as to shock one’s sense of justice. Thus, we discern no error from the trial court’s denial of a new trial with respect to Day.

B.

Plaintiff next contends that she is entitled to a new trial as to Day because the jury was misled and confused by the jury instructions. In particular, Plaintiff contends the trial court’s instructions regarding the duty of a pedestrian crossing between intersections were misleading. This argument fails.

In light of the jury’s finding that Day was not negligent, Plaintiffs challenge to the trial court’s charge on Son’s possible comparative negligence is moot. McCoy v. Vankirk, 377 Pa. 515, 105 A.2d 112 (1954). Nevertheless, as did our Supreme Court in McCoy, we examine the merits of Plaintiffs contention.

When the correctness of the trial court’s instructions is at issue, we view the instructions in their entirety to determine if an error was committed. Agrecycle, Inc. v. City of Pittsburgh, 783 A.2d 863 (Pa.Cmwlth.2001). We will not reverse for isolated inaccuracies; the charge as a whole must be shown to have caused prejudicial error. Id. Thus, to constitute reversible error, a jury instruction must be erroneous and harmful to the complaining party. Id.

Here, the trial court explained the concepts and burdens of proof associated with claims of Son’s negligence. Notes of Testimony, May 31, 2001 (N.T.) at 10-18, 20, 23-25. Included in those instructions were correct explanations of the principles of negligence and ordinary care. See Pennsylvania Suggested Standard Jury Instructions (Civ) §§ 3.01, 3.02. Special instructions were repeatedly given to assist the jury in applying the principles to a child. N.T. at 13-14, 17-18; see Pennsylvania Suggested Standard Jury Instructions (Civ) § 3.10. Further, the trial court outlined the claims of PennDOT and Day regarding Son’s acts and omissions including failing to look for and observe oncoming traffic, stepping into the travel lane, and negligence per se for a violation of the Vehicle Code. N.T. at 15-16. The trial court reminded the jurors:

You must determine whether the Defendants have proven that Robert Stong, under all circumstances presented, failed to exercise reasonable care for his own protection.

Id. at 16.

Also, the trial court instructed the jury regarding the contention that Day was negligent per se for violations of the Vehicle Code. Id. at 19. Immediately thereafter, the trial court instructed the jury regarding the contention that Son was negligent per se for a violation of the Vehicle Code provision requiring pedestrians crossing at other than a crosswalk or at an intersection to yield to oncoming traffic. Id. at 20. Both instructions conformed to the suggested format. Pennsylvania Suggested Standard Jury Instructions (Civ) § 3.30. In addition, the trial court instructed the jury:

The mere fact that a Plaintiff crosses between intersections is insufficient to prove contributory negligence.

N.T. at 20.

A pedestrian may not cross between intersections without exercising due care. Bressler v. Dannon Yogurt, 392 Pa.Super. 475, 573 A.2d 562 (1990). If a pedestrian crosses a street at other than a regular crossing the person is bound to exercise a higher degree of care for his own safety than if crossing at an intersection. Id. “The reason for this rule is apparent for he is crossing at a place where vehicular traffic could not be expected to anticipate a pedestrian.” Id. at 567. (Citations omitted.)

Plaintiff relies on Bressler. In Bressler, the trial judge instructed the jury in a manner similar to the trial court’s instruction on violation of the pedestrian crossing provision here. In addition, the Bressler trial judge said, “[i]f you find that [Plaintiff] was in the act of crossing the roadway at a point other than within a crosswalk or an intersection, then you should find him negligent.” Id. at 565-66. Our Superior Court reversed. The Court noted that “the mere fact that a pedestrian crossed between intersections is insufficient to establish negligence.” Id. at 566. The Court also noted that the trial court failed to rectify the error or clarify the issue.

Bressler does not compel a new trial as to Day for several reasons. First, the trial court here did not instruct the jury that crossing at a point other than within a crosswalk or at an intersection is negligence; rather, the trial court instructed the jury that a violation of the statute is negligence. Because the statute requires yielding but does not prohibit crossing, this distinction is significant. Second, unlike the trial judge in Bressler; the trial court here clarified the issue. Indeed, the trial court used language materially identical to the language in Bressler to do so. Third, the language used to clarify the issue was the exact language requested by Plaintiff. Stong, 56 Pa. D. & C. 4th at 557-58. Plaintiff cannot now be heard to complain that the requested instruction was insufficient to clarify the issue. Fourth, a review of the trial court’s entire charge reveals an accurate, comprehensive and fair explanation of all pertinent legal principles.

Accordingly, we affirm the order denying a new trial as to Day.

Judge SMITH-RIBNER dissents.

ORDER

AND NOW, this 24th day of February, 2003, the order of the Court of Common Pleas of Lycoming County is hereby affirmed to the extent it denies a new trial as to defendant Sabrina Day and the order is reversed to the extent that it grants a new trial to plaintiff Marsha Stong as to defendant Commonwealth of Pennsylvania, Department of Transportation.

1 . The bridge over East Mill Creek was built in 1938. Although the roadway of the bridge's surface was widened over the years, the bridge itself has not been widened. At the time of the accident, the distance from the curb along both edges of the bridge was 15 % inches to the fog line which is a solid white line along the side of the roadway. The fog line to the center was 104 inches and in the southbound lane it was 105 inches.

2 . The Harman Court specifically stated that a review of a denial of a new trial requires the same analysis as a review of a grant.