Thompson v. City of Philadelphia

Decision Date14 November 1983
Citation320 Pa.Super. 124,466 A.2d 1349
PartiesJoan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. CITY OF PHILADELPHIA and William Smith and Srein Furniture Carriers, Inc. (Five Cases) Appeal of William SMITH and Srein Furniture Carriers, Inc. (Three Cases) Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. William SMITH and Srein Furniture Carriers, Inc., Appellants. Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. COMMONWEALTH of Pennsylvania. (Four Cases) Appeal of SREIN FURNITURE CARRIERS, INC., and William Smith. Appeal of CITY OF PHILADELPHIA. (Six Cases) Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. William SMITH and Srein Furniture Carriers, Inc. (Three Cases) Appeal of COMMONWEALTH of Pennsylvania. (Two Cases) Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. COMMONWEALTH of Pennsylvania, Appellant. Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. William SMITH and Srein Furniture Carriers, Inc., Appellant.
CourtPennsylvania Superior Court

Michael W. Bolechowski, Deputy Atty. Gen., Philadelphia, for Commonwealth, appellant (at Nos. 2656, 2654 [320 Pa.Super. 128] and 2655) and for Commonwealth, appellee (at Nos. 2298, 2301, 2653 and 2659) and for Commonwealth, participating party (at Nos. 2296, 2297, 2299, 2300, 2651, 2652, 2657 and 2658).

Sandra Mazer Moss, Asst. City Sol., Philadelphia, for City of Phila., appellant (at Nos. 2299, 2300, 2301, 2651, 2652 and 2653) and for appellee (at Nos. 2296, 2654 and 2657) and for participating party (at Nos. 2656, 2297, 2298, 2655, 2658 and 2659).

James M. Marsh, Philadelphia, for appellant (at Nos. 2296, 2297 and 2298) and for appellee (at Nos. 2299, 2300, 2651 and 2652) and for participating parties (at Nos. 2301, 2653).

Before CIRILLO, MONTEMURO and HOFFMAN, JJ.

HOFFMAN, Judge:

In these appeals from an order granting a new trial solely on the issue of comparative negligence, the parties challenge this court's jurisdiction, the mootness of the appeal, the lower court's jury instructions, and the propriety of a grant of a new trial. We find that the appeal is properly before us, and that only the grant of a new trial was error. Accordingly, we reverse and enter judgment upon the jury's verdict.

On September 28, 1976, William Smith, an employee of Srein Furniture Carriers [Srein], drove his tractor-trailer through a guardrail at the end of the Spring Garden Street exit ramp and plunged onto the westbound lane of the Schuylkill Expressway, crushing the decedent's vehicle. Plaintiff, decedent's wife, sued Smith, Srein, the City of Philadelphia, and the Commonwealth in separate actions, alleging Smith's negligence in driving, Srein's vicarious liability, and the City's and Commonwealth's negligence in marking and maintaining their respective portions of the Expressway and exit ramp. Early during the consolidated trial Smith and Srein [hereinafter Smith] settled with the plaintiff for $400,000, but retained a right of contribution from the other defendants according to the jury's apportionment of liability. Following trial, the jury awarded damages totalling $500,000, 1 apportioning negligence 30% to Smith, 35% to the City, and 35% to the Commonwealth. Between the verdict and rulings on post-trial motions, the City and Commonwealth settled with the plaintiff for $32,500 each. In post-trial motions, the City and Commonwealth requested judgment n.o.v., or a new trial, remittitur, and molding of the verdict. Smith opposed and suggested the motions were moot because all defendants had settled with the plaintiff. The lower court denied Smith's request and granted a new trial solely on the issue of comparative negligence. All defendants then appealed to Commonwealth Court and the City and Smith also appealed to this Court. The Commonwealth Court transferred its appeals to this Court. In response to the Commonwealth's motion that we quash and re-transfer the appeals, we directed the parties to brief the question of jurisdiction.

The Commonwealth contends that this case should be transferred to the Commonwealth Court. We disagree. Although the Commonwealth Court generally has jurisdiction over civil actions pertaining to the Commonwealth, 42 Pa.C.S.A. § 762, both intermediate appellate courts may, on their own or a party's motion, "transfer any appeal to the other court for consideration and decision with any matter pending in such other court involving the same or related questions of fact, law or discretion." Id. § 705. Factors influencing the decision to transfer include: whether the case has already been transferred; whether it involves novel or well-settled questions; whether conflicting lines of authority might develop; and whether transfer would conserve judicial resources. Commonwealth v. 84 Quart Bottles of Bianco DiVerona Wine, 250 Pa.Superior Ct. 544, 378 A.2d 1282 (1977). Valley Forge Industries, Inc. v. Armand Construction, Inc., 248 Pa.Superior Ct. 53, 374 A.2d 1312 (1977). Here, the case has already been transferred once, with attendant delay. Although the question of a grant of a new trial on the issue of comparative negligence is novel in Pennsylvania, the underlying principles of tort law are well-settled and traditionally within this Court's province. The appeal presents no issues requiring the Commonwealth Court's special expertise. Moreover, two of the parties, Smith and the City, are undeniably within this Court's jurisdiction. Accordingly, we retain jurisdiction of this appeal.

Smith contends that the City and Commonwealth's appellate issues are mooted by the settlements with the plaintiff. Although all defendants have settled with the plaintiff, they dispute the apportionment of liability among themselves. The jury's apportionment of negligence, as adjudicated in this appeal, will govern the defendants' percentage of liability in their contribution actions against each other. 42 Pa.C.S.A. § 7102; Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639 (3d Cir.1981). To allow the apportionment to stand without reviewing whether the record supports it could substantially prejudice the City and Commonwealth. Moreover, neither affirmance nor reversal of the lower court order would force the plaintiff to relitigate her claims, and thus this appeal does not violate the integrity of the settlements. We therefore address the merits.

The City and Commonwealth argue that the lower court should have granted their motions for judgment n.o.v. because the evidence was insufficient in law to support the verdict. We disagree. In reviewing a trial court's denial of a motion for judgment n.o.v., the evidence, and all reasonable inferences, must be viewed in the light most favorable to the verdict-winner. Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Yandrich v. Radic, 291 Pa.Superior Ct. 75, 435 A.2d 226 (1981). So viewed, the evidence establishes that the Commonwealth was responsible for the expressway and exit ramp, and the City, by contract with the Commonwealth, for the T-intersection at the ramp's end. Smith testified that, while driving his tractor-trailer toward the airport, he saw a sign reading "Airport-South Jersey, Keep Right." He did that, moved from the right lane to the center lane as a courtesy to another driver, then moved back to the right lane, traveled a short distance, and found himself driving up the exit ramp. He testified he saw no indication that this ramp led to an abrupt T-intersection. He realized the peril only at the last moment and, in attempting a left turn, he hit and broke through the guardrail, then plummeted off the bridge and onto decedent's vehicle. He testified he was confused by the Commonwealth's "Keep Right" signs and never saw the City's stop signs, and he was travelling 40-45 miles per hour. Other testimony detailed the design of the roadway and signs, and expert testimony indicated safer alternatives. Thus, whether the City and Commonwealth were liable along with Smith was a jury question, and judgment n.o.v. was properly denied.

The City contends that the lower court erred in denying its request for binding instructions that it had no duty to construct guardrails to withstand the impact of a negligently driven vehicle. We disagree. For the proposition that no duty exists, the City cites two cases, decided before the advent of comparative negligence, denying recovery to plaintiffs who negligently drove through guardrails. Ault v. Pennsylvania Railroad Co., 381 Pa. 496, 113 A.2d 150 (1955); Yocum v. Town of Bloomsburg, 289 Pa. 512, 137 A. 668 (1927). 2 When these cases were decided contributory negligence principles barred recovery if the plaintiff's negligence, however slight, proximately contributed to the accident. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961). Under comparative negligence, the plaintiff is barred only if his causal negligence is greater than that of all the defendants combined. 42 Pa.C.S.A. § 7102. Here, nothing indicates any negligence by the plaintiff. Nor can we say as a matter of law that Smith's negligence in driving was greater than that of the City and Commonwealth in maintaining their respective portions of the roadway. Accordingly, the binding instruction was properly refused.

The City contends next that even if it were negligent in using guardrails and signs, it is not liable because Smith's negligent driving was a superseding cause. This contention lacks merit. Under Restatement (Second) of Torts, § 447,

An intervening negligent act will not be a superseding cause relieving the original actor from liability if that actor at the time of his negligent act should have realized that another person's...

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