Before GOODRICH, STALEY and HASTIE, Circuit Judges.
This action was brought by the administratrix of the estate of Alice Mora, who was killed when the passenger car she was driving collided "head-on" with a truck driven by Philip Freed, the defendants' servant. The accident occurred in Pennsylvania. Jurisdiction is based on diversity of citizenship, and the plaintiff seeks to enforce rights under the Pennsylvania Wrongful Death and Survival Statutes. 12 P.S. § 1601; 20 P.S. § 320.603. The findings of the jury on special interrogatories were for the plaintiff, and the defendants moved for a new trial. The district court denied the motion. On this appeal the defendants urge that they were entitled to a new trial on three distinct grounds.
The first of the defendants' contentions is that the evidence did not justify a conclusion that Freed was on the wrong side of the road at the time of the accident. The highway on which the accident occurred is a two-lane country road with a concrete surface only 18 feet wide. The truck was slightly more than 8 feet wide, leaving less than one foot within which to maneuver on the proper side of the road.The truck weighed 8 tons empty, and at the time was loaded with about 15 tons of sand. It would undoubtedly have been difficult to handle the heavy vehicle properly on so narrow a road even under optimum conditions. But at the time of the accident Freed was not travelling under optimum conditions. First, he was exceeding the safe speed limit by about 10 or 15 miles per hour while travelling down an incline. Second, he was not wearing the glasses which he was required to wear while driving. There was evidence that on occasion a muscular spasm would cause his right eye, when unaided by the glasses, to cross his left.
Under these circumstances special significance attaches to the testimony of eye witness Fleming, who testified that Freed's speeding truck was weaving over the road about 1,000 feet before reaching the point of the impact. He also claimed to have observed the decedent travelling at moderate speed, and on the proper side of the road shortly before the crash. This is, to be sure, not direct evidence on the situation at the precise instant of the impact. But here the inferences permissible from evidence of conduct not more than 20 seconds prior to the collision have distinct probative value in showing how the accident took place. This is not a situation where behavior is observed at some point or time so remote from the accident that what happened later remains only conjectural. See Satovich v. Lee, 1956, 385 Pa. 133, 122 A.2d 212. Instead, the jury could reasonably have concluded that the weight of the truck, the excessive speeed, and the poor vision of the driver, combined to deprive Freed of control essential for driving on so narrow a road; that this incapacity was demonstrated and proved by weaving in the face of oncoming traffic; that the truck was not under proper control half a minute prior to the accident, and that it was, therefore, more probable than not that Freed, and not the decedent, was on the wrong side of the road at the moment of the impact.
Of course, the jury could have found otherwise. It was free to accept or reject the testimony we have outlined. See Bills v. Zitterbart, 1949, 363 Pa. 207, 69 A.2d 78. The fact that the jury chose one of two permissible versions of the way the accident happened does not make the verdict invalid. We are not unmindful that a verdict should be set aside as conjectural when the trier of fact is confronted with two theories of the way in which the accident occurred, and there is no reasonable basis for choosing one theory over the other. Here there was rational basis for a conclusion that Freed rather than the decedent was on the wrong side of the road. See Mitchell v. Stolze, 1953, 375 Pa. 296, 100 A.2d 477; Sevitch v. De Angelo, 1950, 365 Pa. 64, 73 A.2d 372; Bills v. Zitterbart, supra. Cf. Sweeney v. Bonacci, 3 Cir., 1949, 173 F.2d 541. There was no reason for judicial interference with such a finding. See Decker v. Kulesza, 1952, 369 Pa. 259, 85 A.2d 413.
The defendants add another evidentiary consideration. The decedent was admittedly an unlicensed driver. Although such violation of the law may be negligence per se, cf. McCoy v. Vankirk, 1954, 377 Pa. 515, 105 A.2d 112, "the general principle is that the violation of a statute will not create a liability unless it is the efficient cause of the injury." See Stubbs v. Edwards, 1918, 260 Pa. 75, 78, 103 A. 511, 512; Miller v. Gutherie, 1937, 325 Pa. 495, 191 A. 61. And this rule has been applied to unlicensed drivers. Barker v. Reedy, 1950, 167 Pa.Super. 222, 74 A.2d 533; Lloyd v. Noakes, 1929, 96 Pa.Super. 164. The principal evidence of causation is Freed's testimony that the decedent swerved into him, which, the jury could, and, on this record, did reject.
The second major contention for reversal concerns the dispersal of the jury overnight while deliberation on the verdict was in progress. The case was given to the jury at 3:56 p.m. and at 10:35 p.m. the jury announced that it had not agreed on a verdict. The court then admonished the jury to discuss the case with no one, and dismissed the jurors for the night. When the jury returned, the next morning at 10:00 a.m., the court asked each juror whether he had discussed the case with anyone, and each juror answered that he had not. Thereupon, the judge permitted the jury to retire and continue its deliberations. The verdict was brought in seven hours later at 5:11 p.m. Timely objections were made to the separation of the jurors. It is now argued that this procedure was improper and even that it was a denial of the benefit of jury trial as guaranteed by the Seventh Amendment. This contention has been urged upon appellate courts of the United States only infrequently, and it has never been accepted. In Franklin v. Shelton, 10 Cir., 1957, 250 F.2d 92, 99, where the procedure was almost identical to that in the present case, the court noted that no objection had been made to the dispersal. It continued, however, by saying:
"Neither does the record show facts indicating an abuse of discretion by the trial Court in allowing the jury to separate and continue its deliberations the following morning."
Although little has been written on the subject by the courts which have considered dispersal, no inflexible rule has been permitted to dominate practice. Two points seem to have thought controlling: First, that the decision whether to allow dispersal is primarily a matter requiring an exercise of discretion of the district judge, and second, that reversal is proper only when the judge has acted arbitrarily or when prejudice is shown to have resulted from the dispersal. See Franklin v. Shelton, supra; Bratcher v. United States, 4 Cir., 1945, 149 F.2d 742, certiorari denied 325 U.S. 885, 65 S. Ct. 1580, 89 L. Ed. 2000; Brown v. United States, 1938, 69 App.D.C. 96, 99 F.2d 131; Lucas v. United States, 8 Cir., 1921, 275 F. 405, certiorari denied 258 U.S. 620, 42 S. Ct. 272, 66 L. Ed. 795; Guardian Fire Ins. Co. of Pennsylvania v. Central Glass Co., 5 Cir., 1912, 194 F. 851; Liverpool & London & Globe Ins. Co. v. N. & M. Friedman Co., 6 Cir., 1904, 133 F. 713; Walton v. Wild Goose Mining & Trading Co., 9 Cir., 1903, 123 F. 209, certiorari denied 194 U.S. 631, 24 S. Ct. 856, 48 L. Ed. 1158.True, the allowance of a dispersal is contrary to the old common law. And there is, in Dimick v. Schiedt, 1935, 293 U.S. 474, 55 S. Ct. 296, 79 L. Ed. 603, strong language to the effect that the Seventh Amendment perpetuated jury procedures as they existed in 1791. However, prior to Dimick v. Schiedt, the entire development of this area was to the effect that the constitutional conception of jury trial is not inflexible in all details, so long as the essential elements of the institution are preserved. E.g., Gasoline Products Co. v. Champlin Refining Co., 1931, 283 U.S. 494, 51 S. Ct. 513, 75 L. Ed. 1188; Ex parte Peterson, 1920, 253 U.S. 300, 40 S. Ct. 543, 64 L. Ed. 919, and see generally Scott, Trial by Jury and the Reform of Civil Procedure, 1918, 31 Harv.L.Rev. 669.And since Dimick v. Schiedt, supra, this older line of reasoning has been reaffirmed in Galloway v. United States, 1943, 319 U.S. 372, 388-396, 63 S. Ct. 1077, 87 L. Ed. 1458. In this view, fair new procedures, which tend to facilitate proper face finding, are allowable, although not traditional. See Shane v. Warner Mfg. Corp., 3 Cir., 1956, 229 F.2d 207, certiorari dismissed 351 U.S. 959, 76 S. Ct. 860, 100 L. Ed. 1481; Waldrip v. Liberty Mut. Ins. Co., D.C.W.D.La.1951, 11 F.R.D. 426, where, after proper instructions, juries were allowed to take into the deliberation room calculations made by counsel, although not introduced into evidence, as to the size of the verdict.
Moreover, in logic there is much to be said for the proposition that jurors are less likely to reach impartial decisions when kept at their task to the point of exhaustion than they are after a good night's rest; and that the likelihood of corruption from dispersal cannot be an overwhelming danger, since juries traditionally are permitted to separate each evening throughout the taking of testimony in long civil trials. And since the trial judge is in the best position to weigh the various factors relevant to the decision whether the time has come when it is better to permit the jurors to separate than to keep them longer together, he should initially be given the discretion to do so. In this case, the circumstances show no abuse of discretion. And finally, it is conceded that no prejudice has been shown. Indeed, we have the testimony of each of the jurors to the contrary and nothing casting doubt upon their assertions. There was no error in the handling of the jury.
Finally, the appellant claims that an instruction to the jury on the issue of damages was erroneous. Several possible items of damage were submitted to the jury. The disputed item is an award of $3500. for loss of consortium, which the district court described as follows:
"Now to go on to loss of consortium. Consortium is a right growing out of the marital relationship and comprises affection, companionship, love, fellowship, and the many acts, deeds and assistance which a wife renders to a husband to secure the success and happiness of a normal marriage relationship."
The court had previously charged that in computing the separate item of damages allowable for loss of services, the value of a wife's services must be measured with due consideration for the affection which impels a normal spouse to perform better than a mere hireling. This was in accord with our decision in Brest v. Philadelphia Transp. Co., 3 Cir., 1954, 216 F.2d 331. The additional instruction of which complaint is made seems to have called upon the jury to place a value, not only upon services viewed in the light ...