Before McLAUGHLIN, KALODNER and GANEY, Circuit Judges.
This was an action to recover damages on behalf of the estate of the plaintiff's decedent under the Pennsylvania Survival Act, 20 P.S. § 320.603. There was no claim made under the Wrongful Death Act.The case was tried before a jury and resulted in a verdict for the defendant on which judgment was entered. A timely motion for new trial was filed and upon the opinion and order of the lower court denying the motion, the plaintiff filed this appeal.
Plaintiff's decedent was a twenty-year-old student nurse who was killed at 9:00 p.m. on November 20, 1959, as a result of a collision between two automobiles, a Pontiac driven by a young man named Smith and a Chevrolet owned and operated by the defendant, Nancy Harrison. The plaintiff's decedent was a passenger in the Pontiac car driven by Smith which was proceeding in a westwardly direction and the Chevrolet was proceeding uphill in an eastwardly direction on Leech Farm Road near its intersection with Lemington Avenue in Pittsburgh, Allegheny County. Leech Farm Road is a three-lane concrete highway running in an eastwardly and westwardly direction, its south side being intersected by Lemington Avenue. At or just east of the intersection, there was a curve to the left for eastbound traffic which, as stated, at that point, was proceeding upgrade and was the area where the accident happened.
The plaintiff's decedent had previously met Smith and they had gone out for the evening and he was proceeding to take her back to St. Francis Hospital where she was engaged in a special course of nursing and the defendant was enroute to visit a friend in the city of Pittsburgh when the accident happened.
It was stipulated by both counsel that the driver of the Pontiac car, Smith, and the driver of the Chevrolet, the defendant, Nancy Harrison, were both suffering from amnesia and that neither could remember the circumstances surrounding the happening of the accident. Despite this, however, the court charged the jury they were to determine as a fact whether there was any recollection of the occurrence of the accident by those involved. The defendant, Nancy Harrison, nevertheless, took the stand and testified that she had no recollection of the actual happening of the accident although immediately after the occurrence, when she was being brought to the hospital in an ambulance, one of the police officers who had arrived at the scene, Leo Marchetti, who was administering to her enroute, testified that she had told him "* * * that she was going up the hill and that she started to take the corner, sharp, and when she saw the car coming down she didn't have time to get back over on her own side of the road." The driver of the ambulance, Manella, also remembered some further conversation by her which he overheard wherein she inquired whether she could be taken to St. Francis Hospital because her father was on the staff and which request she repeated several times and that she inquired whether anyone was hurt and was struggling to sit up in the seat of her car. Both officers testified that all during the trip to the hospital she was conscious. Smith did not take the stand to testify, nor was his lengthy deposition taken by counsel for the plaintiff offered in evidence.
The testimony showed that when the police arrived on the scene the plaintiff's decedent was wedged in the front seat of the car with her head on the driver's seat and that Smith had been thrown through the door alongside the driver's seat clear of the car. The plaintiff's decedent was taken to the hospital where she died within two hours. The car in which she had been riding which was driven by Smith was found to be on the south or wrong side of the road on which he had been traveling and gone up over a curb 6-8 inches high before coming to rest and was facing north-northeast. The defendant Nancy Harrison's car was in the immediate area near the intersection and it, likewise, was partly on the wrong side of the road and partly in the center lane thereof.
The plaintiff's decedent, Mona McCauley, had lived as a member of the household of Mr. and Mrs. Nelson Brubaker since 1950, and had been a student nurse at the Mercy Hospital in Altoona and was taking special work in psychiatry at St. Francis Hospital in Pittsburgh. Both Mr. and Mrs. Brubaker testified to her love of her home while she was living with them, though never adopted; that she was careful and thrifty and the possessor of good habits, neither drinking nor smoking, and was a girl of good character.
The first error alleged as ground for a new trial is the following portion of the court's charge to the jury: "Now, this action is brought by the administrator of Mona McCauley's estate, claiming damages on behalf of her estate from the defendant, Nancy Harrison. Now, in this connection there has been testimony by Mr. and Mrs. Brubaker, the persons with whom Mona McCauley lived. There is no testimony as to any legal relationship between Mona McCauley and the Brubakers which would give a proper basis for the bringing of this action on their behalf - that is, on behalf of the Brubakers, either by themselves or by the administrator of the estate." The court's reason for giving this instruction was that since the Brubakers gave testimony of her living with them for some 10 years, and that she was a bright and healthy young girl, one who was very thrifty and very much concerned with her home life with them, that this testimony concerning her upbringing might tend to create a "sympathetic but improbable inference" that the action was brought on behalf of the Brubakers and that their relationship with the decedent might be considered in assessing damages.
It is submitted that there was no error here, as all the court did was to properly enlighten the jury on the nature of the cause of action alleged by the party bringing it which, in no wise, detracted from the efficacy of the case which it presented. Though not adopted, the plaintiff's decedent had a very close relationship with the Brubakers and it was part of the plaintiff's case to show the necessary facts relating to her health and her future prospects, as related to the damages sustained by her estate, rather than by the Brubakers whom the jury, unless so told, might think were the parties entitled to recover damages. This instruction by the court did no more than clarify the position of the parties and point up the true relationship that obtained between them.
The next alleged error asserted by the appellant is the submission to the jury by the court of the question of whether or not the negligence of the driver, Smith, in whose car the plaintiff's decedent was a passenger, caused or contributed to the happening of the accident since, it is alleged, the record discloses no negligence on the part of Smith. This, in turn, is tied in with the further alleged error of the court in failing to charge that a presumption of due care existed with respect to Smith, the driver of the Pontiac car.
The portion of the court's charge, after defining negligence and the preponderance of the evidence with respect to the burden of proof, is as follows:
"If you do not find that the Plaintiff has established by a preponderance of the evidence that the Defendant was negligent and that negligence on the part of the Defendant was a proximate cause of the collision, either alone or jointly and concurrently of negligence of Thomas Smith, you need proceed no further, in such an event your verdict would be for the Defendant. In like manner, if you find by a preponderance of the evidence that the collision was caused solely by negligence on the part of Thomas Smith and not by any negligence on the part of Nancy Harrison, your verdict would be for the Defendant. However, if you do find by a preponderance of the evidence that the Defendant, Nancy Harrison, was negligent and that her negligence was either the sole proximate cause of the collision or that it concurred with negligence of Thomas Smith as the proximate cause of the collision, in such event your verdict would be for the Plaintiff for the damages sustained by reason of the death of Mona McCauley." (Italics ours.)
It is submitted that this portion of the instruction to the jury concerning Smith's sole negligence was not alone unnecessary, but confusing, in that it placed in improper focus the sole negligence of Smith, when the negligence, or lack of it, on the part ...