Woodrow F. Rhoads, Administrator of the Estate of Mary Rhoads, Deceased and Woodrow F. Rhoads, Individually v. Ford Motor Company, a Corporation v. Woodrow F. Rhoads, Individually, 514 F.2d 931, 3rd Cir. (1975)
Woodrow F. Rhoads, Administrator of the Estate of Mary Rhoads, Deceased and Woodrow F. Rhoads, Individually v. Ford Motor Company, a Corporation v. Woodrow F. Rhoads, Individually, 514 F.2d 931, 3rd Cir. (1975)
Woodrow F. Rhoads, Administrator of the Estate of Mary Rhoads, Deceased and Woodrow F. Rhoads, Individually v. Ford Motor Company, a Corporation v. Woodrow F. Rhoads, Individually, 514 F.2d 931, 3rd Cir. (1975)
2d 931
Ford's many contentions on appeal essentially cluster around the jury's finding
that Rhoads was also negligent. Because we conclude that the district court
erred in submitting the issue of Rhoads' negligence to the jury, we affirm.
Although somewhat in controversy, the facts giving rise to this litigation are not
complicated. Rhoads sustained injuries, and his wife died as a result of injuries
inflicted, when the automobile in which they were riding veered off the road,
struck a guard rail and overturned.
The parties stipulated to the following: The incident occurred on February 11,
1969, at approximately 1:30 p. m. on Route 22, two miles west of Armagh,
Pennsylvania, in Indiana County. At that time, the husband, who owned the
1968 Ford Torino automobile, was driving the car in a westerly direction. His
wife was a passenger. In the area of the accident, U.S. Route 22 is a two-lane
road, with travel in each direction and a painted, dotted line in the center. At the
time of the accident, the weather was clear and the roadway was dry.
The initial complaint in this action encompassed two theories negligence and
strict liability. Rhoads contended that the accident was caused by Ford's
negligent and defective manufacture of a ball joint on the right front wheel,
which condition caused him to lose control of his car after he had passed a
tractor-trailer and to crash into the guard rail. As trial opened, plaintiffs dropped
the negligence claim and proceeded solely on strict liability.
The district court conducted a bifurcated trial on the issues of liability and
damages. A jury returned special verdicts after the first phase of the trial
indicating: (a) the accident was caused by a dangerously defective condition in
the vehicle; (b) such condition was in existence when sold by Ford, and (c)
Rhoads was negligent in operating the vehicle. At the completion of the
secondary trial, the jury returned special verdicts awarding Mr. Rhoads
$8,238.75 for his own injuries; and the estate of Mrs. Rhoads $41,000.00 under
the survival act, and $103,166.97 under the wrongful death statute.
Thereafter, both Rhoads and Ford filed motions for judgment.1 Rhoads sought
to have the special verdict finding him negligent set aside as against the law and
without evidentiary support. Ford similarly urged motions to set aside the first
two special verdicts. After a hearing, the district court entered judgment against
Ford in favor of Rhoads, as a plaintiff and as a third-party defendant. Ford then
filed a timely motion for judgment n. o. v. or, in the alternative, for a new trial.
The district court denied these motions by memorandum. 374 F.Supp. 1317
(W.D.Pa.1974). This appeal, timely noticed, followed.
10
11
12
Rhoads, as third-party defendant, did make a post-trial motion to set aside the
jury's third special verdict on liability. However, under the final judgment,
Rhoads as plaintiff recovered in his own right for his injuries and there was no
judgment entered against him as a third-party defendant. It is axiomatic that
only a party aggrieved by a final judgment may appeal. Utility Contractors
Association of New Jersey, Inc. v. Toops, 507 F.2d 83, 85-86 (3d Cir. 1974).
See generally 9 J. Moore, Federal Practice P 203.06 (2d ed. 1973). Therefore,
the third-party defendant might well have believed that he could not appeal the
final judgment. While better practice would have dictated that Rhoads file a
protective cross-appeal, in these circumstances we will not allow his failure to
file a notice of appeal to preclude our review of the record. In this respect, we
follow the rule we recently invoked in a modified context: once appellate
jurisdiction attaches, " 'the power of the court of appeals should be plenary to
the extent that it chooses to exercise it. A court should not close its eyes to what
is plainly there.' " McCreary Tire & Rubber Co. v. CEAT S.p.A., 501 F.2d
1032, 1038 (3d Cir. 1974), quoting 9 J. Moore, Federal Practice P 110.25(1), at
273 (2d ed. 1973).
13
Our review of the record in this case indicates that "what is plainly there" is a
total absence of sufficient evidence to warrant sending the issue of Rhoads'
negligence to the jury.2 The state policeman who investigated the accident
testified that the speed limit for automobiles at the time and place of the
accident was 55 miles per hour; for trucks, 45 miles per hour. The only
surviving eyewitnesses were Mr. Rhoads and Catania, the driver of the tractortrailer. Each gave admissible testimony,3 relevant to the rate of speed at which
Rhoads was driving, indicating that he was within the speed limit.
14
The state trooper testified for the defense that Catania had made a statement to
the policeman in which, the officer said, Catania admitted to driving at 60
miles per hour when Rhoads passed him. The officer's testimony, however, was
clearly hearsay and the court properly sustained an objection when it was
proffered first. After Catania's deposition was read into the record, the defense
elicited the information a second time from the trooper, who read from his
report of the accident, and it was allowed. This evidence, however, was relevant
only on the issue of Catania's credibility, not for the truth of the matter asserted.
15
16
Moreover, the brute fact remains that, in Pennsylvania, speed in excess of the
statutory limit is not negligence unless the speed was a proximate cause of the
accident. E. g., Roadman v. Bellone, 379 Pa. 483, 489-90, 108 A.2d 754, 758
(1954). Here, Ford simply failed to satisfy its burden of proof.5 Instead, the
defense was content to limit its case to one expert witness on the issue of
whether the ball joint was defective and the testimony of the state trooper. It
produced no evidence of causation. The parties stipulated that, at the time and
place of the accident, the weather was clear, the roadway straight, and the
pavement dry. In such circumstances, and even assuming Rhoads was driving
60 miles per hour, there was insufficient evidence from which the jury could
find "without resort to prejudice or guess" that such speed caused the loss of
control. Leizerowski v. Eastern Freightways, Inc., supra; Kridler v. Ford Motor
Co., supra; Smith v. Bell Telephone Co., 397 Pa. 134, 138, 153 A.2d 477, 47980 (1959). Accordingly, we hold that the district court erred in submitting the
question of Rhoads' negligence to the jury. It should have granted the thirdparty defendant's motion for a directed verdict. Our decision in this respect
renders it unnecessary to reach appellant's arguments that the contributory
negligence of a driver (1) would bar recovery under Section 402A, or (2) entitle
the manufacturer of a defective product to contribution.
17
We have also considered each of the other arguments raised by appellant and
find them to be without merit.
18
Each of these motions had as a proper predicate the denial of an earlier motion
for a directed verdict. See F.R.Civ.P. 50(b)
Catania moved to California and was unavailable for trial. However, his pretrial deposition was read into the record. N.T. 123
Unlike the statement in the trooper's report which attributed a speed of 60 miles
per hour to Catania's vehicle, Catania's signed statement contained the
following:
When I reached the end of the curve and started downgrade a westbound car
passed by me. There wasn't any eastbound traffic in sight and the car passed me
in a legal passing zone. I would estimate my speed to be about 50 mile (sic) per
hour at this point so the car had to (sic) traveling at about 55 to 60 mile (sic) per
hour.
5
The only other suggestion of negligence on the part of Mr. Rhoads was the
controverted testimony concerning whether he began to pass Catania's vehicle
on the curve or in the straightaway. However, that the automobile went out of
control in the straightaway was uncontroverted. Thus, irrespective of the
starting point of the pass, we conclude that, if in fact Rhoads began the pass in
the curve, there was no evidence adduced to support a conclusion that such a
breach of the duty of care caused the accident