Drew v. Laber

OPINION

LARSEN, Justice.

James F. Drew, while walking on Bullens Lane in Ridley Township, was permanently injured when struck by an automobile driven by Charles Laber, Jr. Drew instituted an action in trespass seeking recovery of damages against Ridley Township and Laber. After a jury returned a verdict in favor of Drew against Ridley Township and Laber in the sum of $178,440.55, Ridley Township filed motions for judgment n. o. v. and for a new trial. The trial judge vacated the judgment in favor of Drew and entered judgment in favor of Ridley Township against Drew, non obstante veredicto. The aforesaid order did not dispose of the motion for a new trial. Laber did not file any post-verdict motions.

*299The order of the trial court was affirmed by the Superior Court by per curiam order. Subsequently, this Court entered an order granting Drew an appeal of the Superior Court’s order.

The sole question before this Court is whether there was sufficient evidence to support the jury verdict. Smith v. Coca Cola Bottling Company, 152 Pa.Super. 445, 33 A.2d 488 (1943). In reviewing the trial court’s judgment n. o. v. in favor of Ridley Township, this Court must consider only that testimony which supports the verdict. Elliott v. Philadelphia Transportation Company, 356 Pa. 643, 53 A.2d 81 (1947). The facts on which this Court must decide the appeal of Drew (the verdict winner) are those which the jury may have found from the evidence, including all reasonable inferences arising therefrom. Collins v. Pennsylvania R.R., 358 Pa. 168, 56 A.2d 236 (1948).

The incident occurred on February 10, 1969, at approximately 6 p. m. when Drew was proceeding south as a pedestrian on Bullens Lane toward the bus stop located at the intersection of Bullens Lane and MacDade Boulevard. Since Bullens Lane did not have shoulders, sidewalks or berms appurtenant to it, Drew was forced to walk on the roadway. As he was walking on the right edge of Bullens Lane, Drew was struck by an automobile owned and operated by Laber.

At trial, Laber testified that he (Laber) was proceeding in a southerly direction on Bullens Lane, heading toward MacDade Boulevard at approximately 20 to 25 miles per hour. When he saw headlights approaching from a vehicle traveling in the opposite direction, Laber placed his own headlights on low beam and, in order to avoid hitting the oncoming car, drove as far to the right as he could without becoming entangled in the brush and trees which hang over the embankments that border both sides of Bullens Lane. Just after the cars passed each other, Laber struck Drew with his vehicle. Laber had not seen Drew due to the fact that he was momentarily blinded by the oncoming headlights.

*300Bullens Lane was not a desolate country road when this incident occurred. Rather, it was located in the middle of a highly residential area and was a connector or feeder road, joining the heavily traveled thoroughfares known as Sproul Road and MacDade Boulevard. At the point of impact, Bullens Lane was a two lane highway which had a width of seventeen feet. Dr. James J. Schuster, a traffic transportation engineer who was Drew’s expert witness, testified that if a motor vehicle had a width of eight feet, two vehicles passing each other on this strip of roadway had a maximum clearance of one foot. Because there were no shoulders, sidewalks or berms appurtenant to the roadway and since the roadway was bordered by embankments which were covered with brush and trees, pedestrians such as Drew were compelled to walk along the roadway itself. Edward Lincoln, an officer on the police force of Ridley Township, testified that he frequently saw pedestrians walk on these traffic lanes. Notwithstanding these conditions, Ridley Township undertook to provide no precautionary measures of any kind to protect pedestrians who were forced to utilize Bullens Lane. There were no road markings, no lights, no signs and no place to escape the danger of approaching vehicles or traffic.1

Under Pennsylvania law “a municipality is required to construct and maintain its highways in such a manner as to protect travelers from dangers which, by the exercise of normal foresight, careful construction and reasonable inspection, can be anticipated and avoided.” Mitchell v. Rochester Borough, 395 Pa. 373, 378, 150 A.2d 338, 340 (1959). A municipality owes this duty not only to motor vehicles, but to pedestrians who, in the absence of sidewalks, have rights “equal” to those of motor vehicles on roadways. Neidlinger v. Haines, 331 Pa. 529, 532, 200 A. 581, 582 (1938).

The type of precautions that are to be taken by a municipality in the construction and the maintenance of a safe *301highway is ascertained by examining the nature of the traffic which uses a roadway. Rodgers v. Shaler Township, 164 Pa.Super. 558, 560, 67 A.2d 806, 808 (1949). A municipality’s duty “is not confined to maintaining the bed of . [a] road in a solid and safe condition and clear of obstructions, but extends to the erection of barriers or other devices for guarding unsafe and dangerous places on or along . [a] road.” Rodgers, supra. The question of whether a municipality has taken the requisite precautions which it owes to travelers is one for the jury.2 Mitchell, supra.

It is clear that there is sufficient evidence to support the jury’s verdict that Ridley Township was negligent in not providing for the safety of pedestrians traveling on Bullens Lane and that this negligence was the proximate cause of Drew’s injuries.

The trial judge in his opinion concluded that “the road had nothing to do with the accident.” In the lower court’s view, it was Laber’s negligence in looking at the oncoming car that caused the accident. The trial court disregarded the fact that Laber testified that he (Laber) was preoccupied with the oncoming car precisely because of the dangerous narrowness of the road, and hence, did not see Drew. Laber testified that he drove as far to the right as possible without going into the brush and trees on the embankment. Further, he said that the narrow width of the roadway provided little clearance between the two cars. Thus, the crucial casual link between the road and the accident was ignored by the lower court.

Further, in entering judgment n. o. v. in favor of Ridley Township, the trial court refused to consider the testimony of Dr. Schuster, the traffic transportation engineer who *302testified as Drew’s expert witness. Although the trial judge admitted Dr. Schuster’s testimony at trial, he excluded it from consideration when he granted Ridley Township’s motion for judgment n. o. v. In the past, this Court has held that a motion for judgment n. o. v. must be decided upon the record as it existed at the close of trial. Kotlikoff v. Master, 345 Pa. 258, 27 A.2d 35 (1942). In deciding the motion, the trial court cannot eliminate evidence on the ground that it was inadmissable and then enter a judgment n. o. v. on the basis of the diminished record. Hershberger v. Hershberger, 345 Pa. 439, 29 A.2d 95 (1942). Therefore, the trial court erred in excluding Dr. Schuster’s testimony when it considered Ridley Township’s motion for judgment n. o. v.

Finally, it was not improper for the trial court to permit Dr. Schuster, an expert in the field of transportation engineering, to testify at the trial. Dr. Schuster testified that the section of Bullens Lane where the accident occurred was “not properly maintained . . . consistent with good traffic engineering principles” and that at a minimum, Ridley Township should have placed signs along Bullens Lane warning motorists that pedestrians walked on the traffic lanes.

Where the factual situation is such that normally lay persons (jurors) would not have the special or expert knowledge needed to comprehend and understand the problem, then expert testimony is appropriate. This case warranted such testimony; it was relevant to the factual issues of negligence and causation.

The order granting judgment non obstante veredicto is reversed and the case is remanded to the trial court to dispose of the motion for new trial.

POMEROY, J., filed a concurring opinion and O’BRIEN and NIX, JJ., joined. ROBERTS, J., filed a dissenting opinion in which EAGEN, C. J., joins.

. The lower court stated that there was sufficient evidence to support the jury’s finding that Drew was not contributorily negligent in walking along Bullens Lane. Therefore, that issue is not before us in this appeal.

. Drew claims that Ridley Township was negligent per se since the width of Bullens Lane (seventeen feet) did not conform to the Pennsylvania First Class Township Code provision that “in no case shall any public street be less than twenty-four feet in width.” 53 P.S. § 57012 (1957). Since Drew never advanced this claim in the trial court, the question of whether Ridley Township’s failure to meet the Pennsylvania First Class Township Code constitutes negligence per se is not before us in this appeal.