Betty D. Kinney v. Joseph H. Glass, 418 F.2d 1262, 3rd Cir. (1969)
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Scribd Government DocsBetty D. Kinney v. Joseph H. Glass, 418 F.2d 1262, 3rd Cir. (1969)
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Scribd Government Docs418 F.
2d 1262
Betty D. KINNEY
v.
Joseph H. GLASS, Appellant.
No. 17894.
United States Court of Appeals Third Circuit.
Argued October 9, 1969.
Decided November 20, 1969.
William B. Freilich, LaBrum & Doak, Philadelphia, Pa. (James M. Marsh,
Philadelphia, Pa., on the brief), for appellant.
Sheldon L. Albert, Beasley, Albert, Hewson & Casey, Philadelphia, Pa.,
for appellee.
Before McLAUGHLIN, FORMAN, and ALDISERT, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
This is an appeal from a judgment in a diversity personal injury suit in the
United States District Court for the Eastern District of Pennsylvania for
$35,000 pursuant to a jury verdict against Joseph H. Glass, the appellant, in
favor of Betty Kinney, the appellee, and from the denial of appellant's motion
for a new trial.
In January 1964, the appellant and the appellee were involved in a three car
collision in the west bound lane of the Schuylkill Expressway, Philadelphia, a
divided highway with two lanes in each direction. Appellee contends that a
third car stopped immediately ahead of her automobile in the right lane and that
she came to a halt in order to avoid a collision. She alleges that shortly
thereafter the appellant, also travelling in the right lane, hit her car from behind
and pushed it into the stopped car which caused her vehicle and the third car to
be carried into the left lane.
Contrary to appellee's version, appellant alleges that he was driving in the left
lane approximately ten feet behind and to the left of the appellee. He asserts
that the accident occurred when the appellee suddenly swerved into the left
lane.
The appellant now assigns as error the trial judge's failure to sufficiently
specify in his charge to the jury that section 1002(a) of the Pennsylvania Motor
Vehicle Code1 imposes a twofold duty upon a driver travelling in a line of
traffic. First, appellant contends, it requires that a driver operate his vehicle in a
manner as to permit him to bring it under control in a reasonably safe distance
from preceding cars. Secondly, he asserts, it requires that a vehicle be operated
in a manner to permit cars in the rear sufficient time and distance to stop. It is
this second requirement that appellant contends the District Judge failed to
clarify in his charge. However, the District Judge instructed the jury that the
provisions of section 1002 "could apply to both parties in this case."2 We find
that this was sufficient to encompass appellant's theory of the duties imposed
upon drivers by section 1002 of the Code.
Consistent with his theory of the accident, appellant also assigns as error the
District Judge's failure to charge under section 1012(a) of the Pennsylvania
Motor Vehicle Code.3 This section essentially requires a driver to signal 100
feet before changing lanes. However, according to the appellant's theory "[i]t
all happened in a matter of, well, just like a flash of lightning."4 Obviously,
charging the jury that a signal was required would have little relevance under
this account of the accident. Moreover, the court did charge the appellant's
theory of the unexpected swerve by the plaintiff as negating appellant's
responsibility for the accident.5 Under these circumstances, failure to charge
section 1012(a) is neither prejudicial nor erroneous. Furthermore, despite the
court's direction that it would hear counsel's specific objections at the close of
his charge, appellant was silent as to the omission of instructions on section
1012(a).6 Under Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C., he
lost his right to press this assignment of error, unless the omission constituted a
miscarriage of justice. In this case it cannot be characterized as that flagrant.
Additionally, appellant contends that the appellee failed to differentiate with
reasonable approximation the damages resulting from the injuries of this
accident and those in a second automobile accident which occurred one month
later.7 Relying on McGuire v. Hamler Coal Mining Co., 8 the appellant urges
that without a showing of such differentiation by the appellee the jury could not
properly find a verdict in her favor. But McGuire is sharply different from this
case. There his suit was defeated because his own doctors were unable to say
whether his complaints were attributable to either of two separate accidents he
sustained. Here, evidence was given of appellee's hospitalization immediately
following the first accident together with a history of disability culminating in
surgery upon her spine, performed by Dr. Raymond Stein three years later. This
surgeon's unequivocal and uncontradicted testimony was:
7
"Well, I think there is a definite relationship between these traumatic episodes.
She was involved in two accidents. She had no history of having any difficulty
with the neck before, and unquestionably her problem started with the time of
the first accident." (Emphasis supplied.) 9
Unfortunately, any recital of further details of Dr. Stein's opinion relating to
appellee's condition and the first accident was frustrated by the persistent
objections of the appellant, sustained by the District Judge.10 Under such
circumstances appellant may not be heard now to complain of the absence of
evidence which he himself succeeded in suppressing.11
The fact remains that unlike the circumstances in McGuire, Dr. Stein in this
case affirmatively connected appellee's injuries with the first accident. The
credit to which his testimony was entitled in light of the lapse of time between
the accident and when Dr. Stein attended appellee was for the jury. We cannot
say that the testimony of Dr. Stein and that of the appellee together with the
hospital records of medical history admitted in evidence was insufficient for the
jury to make a reasonable approximation of the damages sustained by the
appellee as a result of the first accident as differentiated from the second.
10
On cross examination of appellee, appellant's counsel brought out that her
answers to interrogatories filed in the state court suit12 described medical
treatment and expenses substantially identical to those demanded in this suit.
Hence, appellant argues it became impossible for the jury to apportion damages
to the first accident with reasonable approximation. We do not agree. The effect
of this cross examination was a factor for the jury's consideration against the
background of the instructions of the District Judge that the appellee could
recover only for damages resulting from this accident and that appellant should
not be held responsible for any injury that came from any other source or from
any other accident.13 Apparently the jury was convinced that the damages
claimed by appellee in this case stemmed from the first accident.
11
Finally, appellant asserts that it was prejudicial error for appellee's counsel to
read from the hospital records during his closing arguments to the jury.
Appellant's counsel had agreed that the hospital records should be marked in
evidence anomalously reserving, however, that they should not go out to the
jury. Both the District Judge and the appellee's counsel believed that the
records were in evidence and were therefore properly for the jurors' hands.
Considerable controversy ensued concerning this and at the very end of the
case the District Judge finally was persuaded to withhold from the jury all of
the medical records except the histories. An examination of the portions of the
medical records read by appellee's attorney during the closing arguments
discloses, however, that they were largely excerpts from the medical histories
which were unquestionably stipulated by counsel to go into evidence. Counsel's
non-history references were brief and insignificant.14 They did not rise to the
degree of prejudice claimed for them by the appellant and constitute no ground
for reversal.
12
For the foregoing reasons, the judgment of the United States District Court for
the Eastern District of Pennsylvania in favor of Betty Kinney and against
Joseph H. Glass and the denial of the motion for a new trial will be affirmed.
Notes:
1
75 P.S. 1002(a) reads:
"(a) Any person driving a vehicle on a highway shall drive the same at a careful
and prudent speed, not greater than nor less than is reasonable and proper,
having due regard to the traffic surface, and width of the highway, and of any
other restrictions or conditions then and there existing; and no person shall
drive any vehicle, upon a highway at such a speed as to endanger the life, limb,
or property of any person, nor at a speed greater than will permit him to bring
the vehicle to a stop within the assured clear distance ahead."
Appendix, p. 276a
75 P.S. 1012(a) (1969 Supp.) reads:
"(a) The driver of any vehicle upon a highway before starting, stopping, turning
from a direct line, moving from one traffic lane to another or entering the traffic
stream from a parked position, shall first see that such movement can be made
with safety. If any pedestrian may be affected by such movement a clearly
audible signal shall be given by sounding the horn. Before making any such
vehicle movement, the driver shall give a plainly visible signal in the manner
described in this section. The signal shall be given one hundred (100) feet in
advance of and during the turning movement or a lane change. The signal shall
be given prior to movement of the vehicle and prior to and during entry of the
vehicle into the traffic stream from a parked position. Stopping signals shall be
given during the time vehicle speed is being reduced by braking."
4
Appendix, 205a
Id. pp. 276a-77a
Id. p. 285a
The second accident is the subject of a suit instituted earlier, however, than the
instant one Kinney v. Green, Court of Common Pleas of Philadelphia,
March Term 1965 and untried at the time of this appeal
355 Pa. 160, 49 A.2d 396 (1946)
Appendix, p. 107a
10
Appellee's attorney continued to press Dr. Stein for an opinion as to whether or
not the first accident either caused or was a substantial factor or precipitated the
ultimate condition which he found. After overruling the question as having
been answered, the District Judge stated:
"He [Dr. Stein] said from the history and from the background of the case that
he had, she was in an accident in January and then she was in another accident
later on and the second accident could have or possibly aggravated a condition
which existed from the first accident."
The Court then asked the witness if that was correct and Dr. Stein replied, "Yes,
sir." Appendix, p. 109a.
11
See F. W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 231, 73 S.Ct.
222, 97 L.Ed. 27 (1952); Brotherhood of Rail Road Trainmen v. Chicago, M.,
St. P., & P. R. Co., 127 U.S.App.D.C. 58, 380 F.2d 605, 609 (1967); Cranston
Print Works Co. v. Pub. Service Co. of N. C., 291 F.2d 638, 649 (4 Cir. 1961)
12
Kinney v. Green,supra note 7.
13
The District Judge cautioned the jury at least five times that they must only
award damages resulting from the first accident. Appendix, pp. 277a-80a
14
One was from the Sacred Heart Hospital record of February 4, 1966, which
reads "Impression: Cervical sprain, probable arthritis secondary to trauma."
Appendix, p. 235a. Another was from the record of St. Joseph's Hospital of
