Marks v. Mobil Oil Corp.

• Decision Date: 25 April 1983
• Docket Number: Civ. A. No. 79-2675.
• Parties: Daniel W. MARKS, Guardian of the Estate of David A. Marks v. MOBIL OIL CORPORATION and Barbara Lou McCreight.
• Court: U.S. District Court — Eastern District of Pennsylvania

562 F. Supp. 759

Daniel W. MARKS, Guardian of the Estate of David A. Marks v. MOBIL OIL CORPORATION and Barbara Lou McCreight.

Civ. A. No. 79-2675.

United States District Court, E.D. Pennsylvania.

April 25, 1983.

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John J. Barrett, Jr., Philadelphia, Pa., for plaintiff.

Joseph F. Moore, Jr., Philadelphia, Pa., for Mobil.

William C. McGovern, Philadelphia, Pa., for McCreight.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

This is a diversity action in which plaintiff, Daniel Marks, as guardian of the estate of his son, David Marks, an incompetent, alleged that his son was severely injured in an automobile accident as a result of the negligence of Mobil Oil Corporation ("Mobil"), which filed a third-party complaint against Barbara Lou McCreight ("McCreight"), the driver of the car in which David Marks was a passenger. A bifurcated trial was held before a jury during September, 1982. The jury found Mobil and McCreight to have been negligent, specifically finding that Mobil was 60% causally negligent and that McCreight was 40% causally negligent in bringing about the accident and injuries to David Marks. After hearing evidence on damages, the jury awarded David Marks $5,147,000 in damages. This amount was increased to $6,583,020.27 by application of Pennsylvania Rule of Civil Procedure 238 which provides for the award of pre-judgment interest. Mobil and McCreight have each moved for both judgment notwithstanding the verdict, or in the alternative for a new trial. For the reasons hereinafter set forth, the Court will enter an Order denying these motions.

Facts

Plaintiff alleged that David Marks was, on November 26, 1978, injured in an automobile accident as a result of the negligence of Joseph W. Galantino ("Galantino"), a Mobil truck driver acting within the course and scope of his employment as an agent of Mobil. Galantino was driving a 45-foot, 15-ton Mobil tanker truck, in particular, a 1978 Kenworth truck tractor with a tank trailer attached. At the time of the accident, Marks was a passenger in a 1969 Volkswagen Beetle driven by McCreight. The accident occurred on U.S. Route 202 in Tredyffrin Township, Chester County, Pennsylvania, as McCreight and Marks were returning to college in North Carolina from their respective parents' homes in Wayne, Pennsylvania. Mobil filed a third-party action against McCreight, averring that if Mobil was found to be liable, McCreight's negligence had also contributed to the injuries to Marks.

Trial was held before a jury in September, 1982. The liability portion of the case was tried first. In answers to interrogatories, the jury found, based on a preponderance of the evidence, that Mobil and McCreight were both negligent and that their negligence had been a proximate cause of the accident. Specifically, the jury found Mobil, through its driver Galantino, to have been 60 percent causally negligent and found that McCreight was 40 percent causally negligent. The trial then continued on the issue of damages, whereupon the jury, after receiving instructions as to the proper measure of damages for lost earning capacity and pain and suffering, returned with its verdict of $5,147,000 in damages for David Marks.

As to liability, plaintiff contended that Galantino's negligence had brought about the accident because, while driving the large Mobil tanker rig at 65 miles per hour, he passed the McCreight Volkswagen creating an air current or bow wave which caused the Volkswagen to leave the highway, turn over, and injure David Marks. David Marks was thrown from the vehicle, which was not equipped with seat belts. Upon impact, Marks was severely injured, suffering brain and spinal damage which have rendered him incompetent, spastic, and paraplegic. The speed limit on the relevant portion of Route 202 at the time of the accident was 55 miles per hour. Plaintiff contended that the Mobil tanker rig had caused the accident by (1) passing the McCreight VW at excessive speed (65 m.p. h.), thereby creating the aerodynamic force which affected the McCreight vehicle; and (2) failing to sound the truck's horn so as to warn McCreight of the imminent pass of the truck.

Mobil's defense to the action was threefold: first, that the aerodynamic effect posited by plaintiff was a physical impossibility; second, that McCreight was aware of the passing truck and that the failure of Galantino to sound his horn could not have caused the accident; and finally that Galantino had been negligent only in driving at excessive speed and that the accident, if it was proximately caused by anyone's negligence, must have resulted from inattentiveness or driver error on the part of McCreight. McCreight's defense to Mobil's third-party complaint was that she had not been negligent in operating her VW but that the VW had been altered in its course and ultimately driven off the road by a collision with the Mobil vehicle.

In support of their various explanations of what happened, Marks and Mobil both presented eyewitness testimony and expert testimony. Plaintiff's expert was Dr. James Wambold ("Wambold") professor of Mechanical Engineering at Pennsylvania State University. Mobil presented expert witnesses in an attempt to refute Dr. Wambold's expert testimony. The principal eyewitnesses were McCreight, Galantino, and Bruce Keeler ("Keeler"). Keeler had been driving on Route 202 at the time of the accident and had witnessed the accident in his rear view mirror.

In support of its motions for judgment n.o.v. or for a new trial, Mobil's principal contentions are that: (1) Dr. Wambold's testimony was flawed in several respects and should not have been admitted; (2) with or without Dr. Wambold's testimony, the jury's finding of negligence on the part of Mobil is not supported by the evidence; (3) David Marks should have been excluded from the courtroom because his obviously severe injuries may have biased the jury in his favor; (4) the Court should have granted a mistrial when the severely injured David Marks uttered some words from the rear of the courtroom at a point during the testimony of McCreight; (5) the Employees' Rulebook of Mobil should not have been admitted into evidence; (6) the Court should not have instructed the jury that Galantino's driving the tanker rig at 65 m.p.h. (10 miles above the posted speed limit) was negligence per se; (7) the verdict was excessive and (8) the Court should not have added prejudgment interest to the damage award pursuant to Pennsylvania Rule of Civil Procedure 238. Despite the large number of proposed grounds for setting aside the jury's verdict, Mobil has not, for the reasons discussed more fully below, persuaded this Court to grant its motions.

Third-party defendant McCreight has also filed motions for judgment n.o.v. or in the alternative for a new trial. As grounds for her motions, McCreight contends that (1) the evidence does not support the jury's finding that she was 40 percent causally negligent in bringing about the accident; (2) witness Keeler's reference in his testimony to being contacted by an insurance adjuster warrants upsetting the jury verdict; (3) the verdict amount was excessive; (4) the Court should have given McCreight's requested instruction concerning the duties of a motorist being passed on the highway and (5) the Court should not have applied Pennsylvania Rule of Civil Procedure 238 to the verdict. Like Mobil, McCreight has provided this Court with no persuasive reason for setting aside the jury's verdict, which was arrived at after a fair trial.

The Standard for Ruling Upon Defendant's Motions

A grant of judgment notwithstanding the verdict is appropriate only when, viewing the evidence presented and drawing all inferences in favor of the verdict winner, a reasonable person could reach no conclusion other than the fact finder had made a mistake and that the moving party was entitled to judgment. See Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 474 (3d Cir.1973); Meyer v. W.R. Grace & Co., 421 F.Supp. 1331, 1334 (E.D.Pa.1976). A moving party is entitled to judgment n.o.v. only when the evidence in support of the verdict winner is insufficient to even create an issue of fact to be submitted to the jury. See Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.1970). Woodward & Dickerson, Inc. v. Yoo Hoo Beverage Co., 502 F.Supp. 395 (E.D.Pa. 1980). A motion for judgment n.o.v. "may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A Moore's Federal Practice, ¶ 50.07(2), at 50-77 (footnote omitted). Overturning a jury verdict is particularly inappropriate where the determination of the proper verdict requires an evaluation of the credibility of witnesses. See Posttape Associates v. Eastman Kodak Company, 68 F.R.D. 323 (E.D.Pa.1975), rev'd on other grounds, 537 F.2d 751 (3d Cir.1976). In ruling on a motion for judgment n.o.v., the Court should not consider the credibility of witnesses. See Thomas v. E.J. Korvette, supra, 476 F.2d at 474.

There are three grounds for granting a new trial: (1) manifest error of law; (2) manifest error of fact; and (3) newly discovered evidence. See 6A Moore's Federal Practice ¶ 59.07. Neither Mobil nor McCreight have contended that there exists newly discovered evidence pertinent to the trial of this matter. Motions for a new trial require the exercise of discretion by the Court, whose duty is to see that the trial verdict does not result in a miscarriage of justice. See Woodward & Dickerson, supra, 6A Moore's Federal Practice ¶ 59.08(4), at 59-160; Thomas v. E.J. Korvette, supra, 476 F.2d at 474-75. "The jury's verdict may be set aside only if manifest injustice will result if it were allowed to stand. The Court may not substitute its own judgment for that of the jury merely because the Court may have reached a different conclusion." Woodward &...