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Leizerowski v. Eastern Freightways Inc.

decided: April 15, 1975.

BORUCH LEIZEROWSKI, IN HIS OWN RIGHT, AND AS HUSBAND OF KLARA LEIZEROWSKI, KLARA LEIZEROWSKI AND ABRAHAM LEIZEROWSKI, APPELLANTS,
v.
EASTERN FREIGHTWAYS, INC. AND RAYMOND KELLY



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (Civil Action No. 70-249).

Seitz, Chief Judge, and Aldisert and Garth, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

We are to apply Pennsylvania law in this personal injuries diversity action and to decide whether the district court erred in submitting the question of the plaintiff-driver's contributory negligence to the jury and whether it was error for the court to charge that the plaintiff-passenger had the burden to prove her future pain and suffering to a "reasonable certainty." Because we conclude that the court erred in these respects, we reverse and direct that a new trial be awarded Boruch Leizerowski and that a new trial limited to damages be granted his wife, Klara.

I.

The bifurcated trial began with an introduction into evidence of a stipulation entered into by the plaintiffs and the defendants:

On Tuesday, May 28, 1968, at approximately 9:40 A.M., the plaintiff, Boruch Leizerowski was driving his automobile in an eastbound direction on Robbins Avenue in the City of Philadelphia.

The plaintiffs, Klara Leizerowski and Abraham Leizerowski, were passengers in plaintiff Boruch Leizerowski's automobile.

When the plaintiff's automobile approached the intersection at Robbins Avenue and Brous Avenue the traffic signals indicated red for the traffic on Robbins Avenue. The plaintiff stopped his automobile on Robbins Avenue. After the plaintiff's vehicle was stopped it was struck from behind by a Mack truck also traveling eastward on Robbins Avenue. This truck was being operated by the defendant, Raymond Kelly. (App. at 5a-6a).

Augmenting the stipulated facts was the testimony by plaintiffs Boruch, Klara and Abraham Leizerowski and by defendant Raymond Kelly, the corporate defendant's employee. At the close of all the evidence plaintiffs made a motion for a directed verdict which was denied. However, the court concluded that there was no evidence of the plaintiff-passengers' contributory negligence and so instructed the jury. The jury returned its liability verdict in favor of the plaintiff-passengers on their claims against the defendants and in favor of the defendants on the claim of the plaintiff-driver.

The trial on the issue of Klara's and Abraham's damages then proceeded before the same jury. During that phase of the trial the court instructed the jury that it could not award the wife's medical expenses. Furthermore, the jury was instructed not to award medical expenses and lost summer, 1968 wages of the minor, unemancipated son. The court reasoned that the medical expenses of the wife were the liability of her husband and that because he was found to be contributorily negligent, Pennsylvania does not permit him to profit from his own negligence. With respect to the unemancipated, minor son, the court concluded that his lost summer wages and medical expenses were not recoverable because of his father's negligence. Thus, the jury was limited to considering Klara's past and future pain and suffering. Because Abraham presented no evidence of future pain and suffering, the court instructed the jury only to consider his past pain and suffering. The jury returned a verdict in favor of Klara and Abraham in the amounts of $6,000 and $500 respectively.

Thereafter, Boruch Leizerowski filed motions for judgment n.o.v. and for a new trial. Klara and Abraham presented motions for a new trial on the issue of damages. The district court denied these motions and this appeal followed.

II.

The parties concede that in a diversity case where the court applies Pennsylvania law, the issue of contributory negligence can be submitted to the jury only when there is evidence from which the jury can reasonably find such negligence "without resort to prejudice or guess." Kridler v. Ford Motor Co., 422 F.2d 1182, 1184 (3d Cir. 1970). In resolving ...


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