Lehman v. McCLEARY ( 1974 )

Opinion by

Watkins, P. J.,

This is an appeal from the order of the Court of Common Pleas of York County entering a judgment n.o.v. against the verdict winner, Bonnie L. Lehman, in a survival action for the death of her husband. The jury brought in a verdict in the total amount of $27,-500.00, but apportioned it by awarding $1,375.00 against the defendant Senft and $26,150.00 against the defendant McCleary. The plaintiff’s attorney requested the court to mold the verdict in an effort to obtain joint and several liability against the defendants but Ms motion was refused and the court later granted appellees’ motion for judgment n.o.v., for the reason that the medical testimony had not clearly established that the decedent was still alive when Senft’s vehicle struck him. The court below further reasoned that in the event the verdict was not overturned that Senft was entitled to a new trial for damages only because of the erroneous exclusion of the results of a blood-alcohol analysis performed on the decedent.

The facts of this case are as follows:

At about 11:30 P.M. on August 20, 1970, the defendant McCleary struck the body of the plaintiff’s husband with her automobile. He was lying in a prone position on the roadway at the time he was struck and had spent much of that day in various drinMng establishments. A few minutes later, the defendant Senft struck the prone body with Ms automobile. The body had remained on the roadway while the defendant McCleary went to get her husband.

At trial, both defendants admitted Mtting the decedent with their respective automobiles while he was lying in the roadway and there was no evidence to explain how the decedent reached the position where he was at the time he was struck by both cars. The issues before this Court, on appeal, are whether the court below should have molded the verdict so that both defendants would be held jointly and severally liable and whether the matter of the blood-alcohol analysis performed on the decedent should have been admitted into evidence, thereby necessitating a new trial.

We agree with the plaintiff’s contention that the trial court should have molded the verdict to find defendants jointly and severally liable for the entire amount of the award. There is no evidence in this case upon which the jury could conclude that either defendant did more damage than the other. The injury to the decedent was his death and so there was only one result and the jury had no basis upon which to apportion any share of this ultimate damage.

In Ferne v. Chadderton, 363 Pa. 191, 69 A. 2d 104 (1949), the court held that even in an action against joint tort-feasors, the verdict must be for a lump sum against all and that the damages could not be apportioned among them. In Longberry v. Paul, 205 Pa. Superior Ct. 435, 211 A. 2d 107 (1965), we held that a court’s power to amend or mold a verdict extends past the time the jury is discharged, although the better practice is to mold the verdict before that time.

Regarding the issue of whether there was sufficient evidence adduced at trial in order that the jury could find that Senft and McCleary were negligent in causing the death of the decedent, we agree that reading the verdict in the light most favorable to the verdict winner, there was such evidence. The medical testimony indicated that the cause of death of the decedent was that he was struck by two or more vehicles. Although the medical expert later stated that he could not say for certain whether the decedent was alive when defendant Senft struck him, the jury could conclude from his statement that two or moi'e vehicles caused the death and that Senft’s striking contribxited to it, since trial testimony produced only two vehicles which struck the decedent, one of which was defendant Senft’s and the other one was McCleary’s.

With regard to the issue of the blood-alcohol analysis being excluded from the evidence, we agree that the court below properly excluded it since there was no proof in this case to show how the decedent got into the position he was in on the roadway. The jury could only guess. The mere fact that the decedent may have been legally intoxicated at the time he was on the roadway does not mean that he was contributorily negligent. Nor does the fact that he was lying on the roadway, without more, constitute negligence per se. He may have fallen on the roadway and by striking his head rendered himself unconscious unconnected with his intoxication. He may have been pushed or mugged and placed in the position where he was found. So many other circumstances may come to mind if we want the jury to conjecture, circumstances that may have been caused by his own negligence not related to his intoxicated condition.

And even if his own intoxication caused him to be in the roadway, this will not relieve the operators of the motor vehicles from striking him under the discovered peril doctrine, which holds: that a plaintiff may recover notwithstanding his own negligence if the defendant failed to exercise due care to avoid inflicting the injury after he knew or should have known that the plaintiff was in a position of peril. Curt v. Ziman, 140 Pa. Superior Ct. 25, 12 A. 2d 802 (1940). “A helpless human being on the highway is entitled to protection from motorists whether he be a hopeless dipsomaniac or a model of sobriety.” Brazel v. Buchanan, 404 Pa. 188, 192,171 A. 2d 151 (1961).

It is, therefore, difficult to say what probative value the introduction of the blood-alcohol analysis results could have had if the court had permitted the results into the evidence. Had the defendants offered some proof as to how the decedent got into the prone position on the roadway, which involved his intoxication, our holding may have been different. However, under the facts of this case, we cannot see what value the results of this test would have.

The order of the court below refusing to mold the verdict and the grant of judgment n.o.v., is reversed, and it is directed that the verdict be reinstated and molded in favor of the plaintiff-appellant, Bonnie L. Lehman, and against the defendants-appellees, Nancy A. McCleary and Bichard L. Senft, jointly and severally.

Hoffman, J., took no part in the decision of this case.