APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 84-0356).
Before: WEIS and SLOVITER, Circuit Judges, and POLLAK.*fn* District Judge.
In this diversity personal injury case, the district court granted a directed verdict for plaintiff on the question of liability. As the driver of one of two automobiles involved in a head to head collision, the plaintiff's conduct would be a matter for consideration under the state's comparative negligence statute. We conclude that the issue of the plaintiff's possible negligence should have been submitted to the jury. Accordingly, we will vacate a judgment for plaintiff and remand for a new trial.
After entry of the directed verdict, the jury returned a damage award of $225,000. Motions for a new trial or remittitur were denied, and defendant appealed.
The factual scenario is an uncomplicated one involving a center of the road automobile collision on Route 307, a two-lane macadam road in rural Wyoming County, Pennsylvania. The accident occurred on April 9, 1982 at approximately 12:10 A.M. The road surface was dry, but there was some snow on the berm.
Plaintiff Richard Gilpin testified that he was alone in his automobile driving south.*fn1 As he approached a narrow bridge about fifteen feet in length, Gilpin first saw the defendant's auto northbound on the same road. At that sighting, the defendant's vehicle was about 300 feet away and travelling in its proper lane. When the two cars were approximately 200 feet apart, Gilpin noticed that the other care was crossing into his lane. He braked, but the left fronts of the two vehicles collided on the bridge. Gilpin recounted that he must have lost consciousness at that point because he did not immediately realize that the defendant's car had passed him.
After impact, the defendant's car continued past the plaintiff's and stopped on the berm completely off the west side of the road. Gilpin's care remained on the bridge, and he testified that "The front end of it was knocked to the left maybe about a foot or so."
On cross-examination, Gilpin said he was about 100 feet from the bridge when he noticed that defendant was coming into his lane. He also stated that on his right was a shoulder and a driveway about fifteen to twenty feet north of the concrete bridge abutment.
The state policeman who investigated the accident testified that Gilpin's car had left skid marks of forth-one feet. Most of the debris from the accident was toward the northern end of the bride in the center of the roadway. At the scene, defendant said she had no memory of what had happened. She seemed confused and dazed when talking to the officer and stated that she must have "either fell asleep or passed out." The policeman did not recall whether defendant had struck her head on the windshield.
No other witnesses testified about the accident, and defendant did not take the stand.
At the conclusion of the testimony, the trial judge stated that he found "no testimony in the record which would constitute negligence on the part of this plaintiff," and he directed a verdict for plaintiff on liability. Counsel for defendant objected, stating that in the area before plaintiff reached the bridge there was "a private driveway and a wide berm" and plaintiff might have taken evasive action to avoid the collision. Therefore, he could have been "negligent to some percentage or degree."
On appeal, defendant contends that the trial court erred in sua sponte directing a verdict for plaintiff and that the award was excessive.
The parties do not dispute that the substantive law of Pennsylvania controls. The question whether state or federal standards apply in determining when an issue should be submitted to the jury has caused some difficulty. See 9 Wright & Miller, Federal Practice and Procedure § 2525 (1972). However, we need not pause to discuss this interesting issue because in previous cases we have concluded that state and federal standards are the same in negligence cases arising under Pennsylvania law. Vizzini v. Ford Motor Co., 569 F.2d 754, 758 (3d Cir. 1977); Denneny v. Siegel, 407 F.2d 433 (3d Cir. 1969).
We begin with the general proposition that a directed verdict in favor of the party having the burden of proof in a negligence case is unusual. Polhemus v. Water Island, Inc., 252 F.2d 924 (3d Cir. 1958). Even in a Jones Act case, where workmen's compensation overtones create a highly favorable climate for the plaintiff, we have held that a directed verdict in his favor is not appropriate, particularly when he is the chief witness. See Mihalchak v. American Dredging Co., 266 F.2d 875 (3d Cir. 1959).
Pennsylvania courts have also demonstrated an aversion to directing a verdict for the plaintiff in personal injury cases. In Gatenby v. Altoona Aviation Corp., 268 F. Supp. 599 (W.D. Pa. 1967), aff'd, 407 F.2d 443 (3d Cir. 1968), the district court summarized Pennsylvania law as holding that when the liability evidence rests on the plaintiff's own testimony, his interest in the outcome requires that the issue be submitted to the jury. At least the jury's consideration is necessary where the plaintiff's conduct allegedly played a part in the incident. In Gatenby and Cowger v. Arnold, 460 F.2d 219 (3d Cir. 1972), this court upheld judgments n.o.v. for the plaintiffs because they were passengers whose conduct was in no way connected with the mishaps. To the same effect, see Krupa by Krupa v. Williams, 316 Pa. Super. 408, 463 A.2d 429 (1983).
In an earlier case, the Pennsylvania Supreme Court had disapproved a directed verdict in favor of plaintiff passengers against a taxi company. The court emphasized the prerogative of the jury to pass on oral evidence in negligence cases. Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966). The trial court had also directed a verdict in favor of another defendant, however, and the result in Kopar may be better explained as resting on ...