Krivijanski v. Union R. Co.

• Decision Date: 26 September 1986
• Citation: 515 A.2d 933,357 Pa.Super. 196
• Parties: John C. KRIVIJANSKI, Administrator of the Estate of Michael E. Krivijanski, Deceased, Appellant v. UNION RAILROAD COMPANY, a Corporation. Edward H. NASSAN, Administrator of the Estate of Jeffrey A. Nassan, Deceased, Appellant v. UNION RAILROAD COMPANY, a Corporation. John C. KRIVIJANSKI, Administrator of the Estate of Michael E. Krivijanski, Deceased v. UNION RAILROAD COMPANY, a Corporation, Appellant. Edward H. NASSAN, Administrator of the Estate of Jeffrey A. Nassan, Deceased, v. UNION RAILROAD COMPANY, a Corporation, Appellant.
• Court: Pennsylvania Superior Court

Page 933

515 A.2d 933

357 Pa.Super. 196

John C. KRIVIJANSKI, Administrator of the Estate of Michael

E. Krivijanski, Deceased, Appellant v. UNION RAILROAD COMPANY, a Corporation.

Edward H. NASSAN, Administrator of the Estate of Jeffrey A.

Nassan, Deceased, Appellant v. UNION RAILROAD COMPANY, a Corporation.

John C. KRIVIJANSKI, Administrator of the Estate of Michael

E. Krivijanski, Deceased v. UNION RAILROAD COMPANY, a Corporation, Appellant.

Edward H. NASSAN, Administrator of the Estate of Jeffrey A.

Nassan, Deceased, v. UNION RAILROAD COMPANY, a Corporation, Appellant.

Superior Court of Pennsylvania.

Argued April 17, 1986.

Filed Sept. 26, 1986.

Robin S. Wertkin, Pittsburgh, for appellants in Nos. 989 and 990 and appellees in Nos. 996 and 997.

Gerald C. Paris, Pittsburgh, for appellants in Nos. 996 and 997 and appellees in Nos. 989 and 990.

Before TAMILIA, KELLY and MONTGOMERY, JJ.

TAMILIA, Judge:

These appeals and cross appeals involve two actions which were consolidated for trial. The executors for the respective estates of Michael Krivijanski and Jeffrey Nassan sought damages from the Union Railroad Company under the Pennsylvania Wrongful Death and Survival Acts. (42 Pa.C.S.A. §§ 8301, 8302)

The decedents were involved in a fatal accident while riding motorcycles on a private unpaved road owned by the Union Railroad Company. There were no witnesses to the incident and the cause was disputed at trial. The plaintiffs contended the decedents collided with an unmarked wire cable which the railroad maintained across the road. The railroad disputed this theory and offered alternative explanations for the accident.

Special interrogatories were separately answered by the jury concerning each plaintiff. The responses were indicative of a jury determination that the actions of the railroad constituted willful or wanton misconduct and those of each decedent negligence.

In both instances the jury attributed 60 per cent of the accident to the railroad's conduct and 40 per cent to the decedent with the total damages to the estate and parents of each decedent set at $25,000. The court then applied the comparative negligence law (42 Pa.C.S.A. § 7102) ¹ and molded the verdict to reflect the fault of the parties. After adding delay damages, the court awarded $19,375.00 to each of the plaintiffs.

Appeals and cross appeals filed in each of the actions are presently before us. The appellants/plaintiffs argue the lower court erred in (1) refusing to grant a new trial on the issue of damages because the verdicts were patently inadequate; (2) instructing the jury that the measure of damages in the survival act claim was "accumulations" and (3) refusing to give further clarifying instructions concerning how the jury should compute "total damages". The appellants/plaintiffs also contend the court erred in submitting the issue of the negligence of the decedents to the jury thus invoking the application of comparative negligence.

The cross appellant/railroad asserts trial court error in admitting into evidence the testimony of a police officer concerning a statement made by Jeffrey Nassan and in refusing to grant a mistrial due to the conduct of a plaintiff's witness who had contact with the jury.

Initially, in reviewing the issues raised concerning the amount of damages awarded we find no merit to the arguments put forth. Whether to grant a new trial because of the alleged inadequacy of a verdict is a matter within the discretion of the trial court and will be sustained absent an abuse of that discretion. Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90 (1978); Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983). The court reviewed the evidence presented concerning the earnings potential of the parties and found no basis to disturb the jury's findings. We can find no abuse of discretion in this holding and thus affirm the trial court's action.

In examining the jury charge as a whole, we find the court properly instructed the jury on damages in general and specifically as to lost earnings. Appellant's claims are thus devoid of merit. Kearns v. Clark, 343 Pa.Super. 30, 493 A.2d 1358 (1985); McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972).

We likewise find no merit in cross-appellant's claims of trial court error. We believe the statement made by Jeffrey Nassan to the police officer was properly admitted as part of the res gestae exception to the hearsay rule. The police officer spoke with Jeffrey Nassan at the hospital approximately two hours after the accident. The officer recounted how when he asked Jeffrey "what happened?" he replied "I hit the cable." (N.T. 5/4/84, Vol. I, p. 287) In light of the total circumstances surrounding the statement, particularly the serious nature of the injuries and the physical condition of Jeffrey Nassan at the time, we find it was properly admitted. There was little possibility of this being a self-serving remark based on reflective thought. See Cody v. S.K.F., 447 Pa. 558, 291 A.2d 772 (1972); Thompson v. City of Philadelphia, 222 Pa.Super. 417, 294 A.2d 826 (1972); Commonwealth v. Blackwell, 343 Pa.Super. 201, 494 A.2d 426 (1985).

We also find the court acted properly in refusing to grant a mistrial when it was discovered that a potential witness had made comments to some of the jurors at a restaurant and later in the court room.

The court questioned the potential witness and certain members of the jury in chambers (N.T. 5/3/84, Vol. I, pp. 194-224) and ascertained that nothing was said about the case nor was there any indication that the party was trying to influence the jurors. In addition a cautionary instruction was given. Under these circumstances, a mistrial was properly denied. Printed Terry Finishing v. City of Lebanon, 247 Pa.Super. 277, 372 A.2d 460 (1977); Brancato v. Kroger Co., Inc., 312 Pa.Super. 448, 458 A.2d 1377 (1983).

The single issue on which we do not agree with the lower court is the applicability of the Comparative Negligence Law (42 Pa.C.S.A. § 7102, see footnote 1).

It is clear that the duty owed to a trespasser by a property owner is to refrain from willful or wanton misconduct. Antonace v. Ferri Contracting Co., Inc., 320 Pa.Super. 519, 467 A.2d 833 (1983); Engel v. Friends Hospital, 439 Pa. 559, 266 A.2d 685 (1970); Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A.2d 440 (1965).

The jury was asked in a special interrogatory to determine whether the conduct of the railroad constituted willful or wanton misconduct and they determined that it did. The question then becomes whether this willful or wanton conduct is a form of negligence under the comparative negligence statute or whether it is a distinct form of conduct to which comparative negligence is inapplicable.

This issue although mentioned in other cases before this Court has never been specifically decided. See Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984); Stubbs v. Frazier, 308 Pa.Super. 257, 454 A.2d 119 (1982); Antonace, supra.

Courts of other states have been divided in resolving this issue. See Stubbs, supra at 308, 454 A.2d at 121; 10 A.L.R. 4th 946, 948; 78 A.L.R.3d 339, 389. Those holding that comparative negligence applies even when willful or wanton misconduct is involved have at times relied on the theory that this type of conduct is a form of negligence and a comprehensive statute requires inclusion. They also note that the concepts of willful and wanton conduct were brought into the law to ameliorate the harsh effects of contributory negligence. Once comparative negligence was enacted this basis for differentiating these types of conduct was no longer considered necessary. Courts have also looked with disfavor on the all or nothing approach, preferring to compare the fault of the parties. See Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962); Amoco Pipeline Co. v. Montgomery, 487 F.Supp. 1268 (1980), (construing Oklahoma law); Sorenson v. Allred, 112 Cal.App.3d 717, 169 Cal.Rptr. 441 (1980).

Other courts have examined prior rulings within the state wherein a distinction was not drawn between willful and wanton conduct, instead the terms were related to negligence. Based on this lack of distinction the practice was carried over to the comparative negligence area. Billingsley v. Westrac Company, 365 F.2d 619 (1966) (applying Arkansas law) (Arkansas later passed a comparative negligence law specifically including willful and wanton conduct).

Courts which have not applied comparative negligence statutes when willful or wanton conduct is involved have held such conduct to be distinct from negligence. In discussing the basis for originally providing an exception to the contributory negligence rule when willful or wanton conduct was involved an additional reason is set forth. The first as stated previously was to ameliorate the harshness of the rule prohibiting recovery when the plaintiff was also negligent. The second reason is that the willful or wanton conduct is deemed to be so close to intentional wrongdoing that the perpetrator should not have the benefit of contributory or comparative negligence being applied. See Draney v. Bachman, 138 N.J.Super. 503, 351 A.2d 409 (1976); Danculovich v. Brown, 593 P.2d 187 (1979) (Wyoming Supreme Court); Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979). See also V. Schwartz, Comparative Negligence, (1974).

Legislative intent has also been discussed and the failure of the legislature to include willful and wanton conduct within the statute has been viewed as indicating a desire to exclude it when gross negligence was specifically included. Davies, supra.

After considering the various arguments set forth, we hold that when willful or wanton misconduct is involved, comparative negligence should not be applied. ² Our primary reason for so holding is the longstanding distinction Pennsylvania courts have made between willful or wanton conduct and negligent conduct.

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