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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ERIKA STEUDLER

Appellant

v.

KIRKLAND KEATING : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1407 EDA 2018
Appeal from the Judgment Entered April 20, 2018 In the Court of Common Pleas of Monroe County Civil Division at No(s): 8795 CV 2013, 8856 CV 2013

MARIA CAMACHO, ADMINISTRATRIX TO THE ESTATE OF VICTOR ANGEL RESTO, Appellant

v.

KIRKLAND KEATING : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1427 EDA 2018

Appeal from the Judgment Entered April 20, 2018 In the Court of Common Pleas of Monroe County Civil Division at No(s): 8795

- CV

- 2013, 8856

- CV

- 2013

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J. MEMORANDUM BY COLINS, J.: FILED MARCH 06, 2019 These are consolidated appeals filed by plaintiffs Erika Steudler and Maria Camacho, Administratrix of t he Estate o f Victor Angel Resto (Decedent) (collectively, Plaintiffs) from judgment s enter ed by the Court of Common PleasJ

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of Monroe County in favor of the defendant Kirkland Keating (Defendant) on jury verdicts in a p ersonal injury action and a wrongful death and survival
action. For the reasons set forth below, we affirm

. The two actions arose out of a vehicle

- pedestrian collision that occurred at approximately 10 :00 p.m. on October 19, 2011 when Steudler and Decedent were walking together along an unlit road. Defendant’s sport utility vehicle (SUV) hit D ecedent and he later died from his injuries. Defendant’s SUV did not collide with Steudler

. The two actions were consolidated in the trial court and tri ed together in November 2017. At trial, Steudler, Defendant and the police officer who came to the scene of the accident testified. In addition, Plaintiffs and Defendant called accident reconstruction expert witness es . The time of the collision was undi sputed and it was undisputed that D ecedent and Steudler

were walking in the dark without any flashlight on the same side of a two
- lane road as vehicles traveling the same direction, with their back s to approaching traffic

. N.T. , 11/28/17 , at 50, 55, 10 6

- 08, 119

. Other facts concerning where Decedent and Steudler were walking, Defendant’s driving , and the weather and visibility conditions at the time of the accident were disputed. D efendant testified that he was driving on the road between the yellow an d white lines when he hit D ecedent

. Id . at 185

- 8 7

. D efendant testified that he did not see
D ecedent before the accident and that the passenger side of the front of his SUV collided with Decedent. Id. at 151, 154

- 57 . D efendant and the policeJ

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officer both testified that the road where the accident occurred was a dark road without significant street lights and that it was raining heavily at the accident scene

. Id. at 148

- 5 2 , 158, 18 2

- 8 3 , 21 4

- 16. T he police officer testified that D ecedent was wearing dark clothing

. Id. at 22 1

- 22

. T he police officer also testified that he found no tire marks or other markings indicating that D efendant ’s vehicle went off the road , that he found one of D ecedent’s shoes lying partially on the white line of the road , and that the collision threw
D ecedent to the right, away from the road

. Id. at 206

- 07, 211, 220

- 2 1 , 226

- 27, 230

. D efendant’s expert opined that D ecedent was walking on the road itself at the time of the accident, based on Steudler ’s testimony as to how she and D ecedent were walking and the width of the shoulder where Defendant and the police officer testified that the accident occurred. N.T. , 11/29/17 , at 118

- 19, 122

- 25

. The cases were submitted to the jury on verdict sheets that asked the jury to determin e first , whether Defendant was negligent ; second, whether Defendant’s negligence was “ a factual cause in bringing about harm to ” Steudler or Decedent; and then to address comparative negligence and damages only if the answer s to both of those first two questions were “yes

. ” Trial Court Record Item 112 Ex. A ; N.T. , 11/29/17 , at 247

- 50

. The jury was also instructed that Plaintiffs, if they proved that Defendant was negligent, had the additional burden of proving that Defendan t’s negligence caused their harm. N.T. , 11/29/17, at 232, 24 1

- 43. Plaintiffs made no objection to thisJ

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instruction or to the verdict sheets and did not contend when the cases were sent to the jury that causation was undisputed or that the jury was required to find causation if it found negligence. Id. at 158

- 68, 253

. The jury returned unanimous verdicts f i nd ing that D efendant was negligent, but that his negligence did not cause harm to D ecedent and Steudler , and , in accordance with the trial co urt’s instructions , the jury did not

answer the other questions on the verdict sheet

. N.T. , 11/29/17 , at 254

- 56 ; Trial Court Record Item 112 Ex. A

. Plaintiffs filed timely post

- trial motions seeking a new trial. The trial court denied the post

- trial motions and entered judgment on the jury verdict in both cases. These appeals from the judgments on the jury verdicts followed. In this Court , Plaintif fs argue that the trial court was required to grant a new trial on the ground that the verdicts were against the weight of the evidence

. 1 We do not agree

. Our review of the denial of a motion for a new trial based on weight of the evidence is limited. We review whether the trial court abused its discretion in denying a new trial , not whether the verdict , in this Court’s opinion, is against the weight of the evidence. Corvin v. Tihansky , 184 A.3d 986, 99 2

_________________ __________ ______ ____ _______ 1 While Decedent’s Estate lists three issues in its statement of the questions involved , all are arguments that a new trial was required because the verdict that Defendant was negligent but that his negligence was non

- causal w as contrary to the evidence.J

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(Pa. Super. 2018) ; In re Estate of Smaling , 80 A.3d 485, 490 (Pa. Super. 2013) ( en banc )

. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge

.... One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence

... . Corvin , 184 A.3d at 99 2 (quoting Phillips v. Lock , 86 A.3d 906 (Pa. Super. 2014) )

. Th e trial court here thoroughly considered whether the jury’s verdicts were against the weight of the evidence and concluded that they were not because the issues of both negligence and causation were disputed and the evidence was conflicting . Trial Court O p inion at 3

- 13. Plaintiffs argue that the jury could not have reasonably foun d that Defendant’s negligence was non

- causal because it was undisputed that the accident fatally injured Decedent and that Steudler suffered some emotional distress from the accid ent

. A verdict for the defendant on causation grounds

can be set aside as contrary to the weight of the evidence where the evidence at trial wa s undisputed that defendant’s negligence caused some injury to the plaintiff or where the jury finds the defendant negligent, there wa s no evidence of any other possible cause of the accident, and it wa s undisputed that the accident injured plaintiff. Bostanic v. Barker - Barto , 936 A.2d 1084, 1088 (Pa. Super. 2007) (defendant’s expert conceded liability for t he accident); Kraner v. Kraner , 841 A.2d 141, 14 3

- 46 (Pa. Super. 2004) (jury found defendant driver negligent in single

- vehicle accident and it wasJ

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undisputed that plaintiff passenger suffered some injury in that accident); Smith v. Putter , 832 A.2d 1094, 1096, 1098

- 99 (Pa. Super. 2003) (defendant conceded that he negligently ran a stop sign and hit plaintiff’s vehicle and some injury from collision was undisputed); Campagna v. Rogan , 829 A.2d 322, 324, 328

- 30 (Pa. Super. 2003) (jury found that defendant wa s negligent, defendant conceded that h e caused the accident, and defendant’s medical expert conceded that plaintiff suffered some injury in the accident); Andrews v. Jackson , 800 A.2d 959, 960, 962

- 65 (Pa. Super. 2002) (negligence was undisputed and only d ispute was extent of plaintiff’s injuries from accident caused solely by defendant).
A new trial , however, cannot be granted on the ground that the verdict was against the weight of the evidence if the evidence at trial was conflicting and the jury could h ave decided in favor of either party. Corvin , 184 A.3d at 993. If there is any support in the record for the trial court’s denial of a motion for a new trial based on weight of the evidence grounds, this Court must affirm. Id. at 992

- 93. A verdict that the defendant was negligent and that his negligence did not harm the plaintiff cannot be set aside as contrary to the weight of the evidence simply because it was undisputed that the accident injured the plaintiff , if the defendant’s negligence and its causal relationship to the accident were in dispute and there was evidence from which the jury could find that the defendant ’s negligence did not cause the accident. Koziar v. Rayner , __ A.3d __, __, 2018 PA Super 331 , * 8

- * 1 4 ( filed Dec. 7, 2018)J

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(grant of new trial on weight of the evidence grounds was reversible error , even though defendants were found negligent and defendants conceded that plaintiff was injured in her fall , because jury could have found that plaintiff’s

ne gligence and not defendant’s negligence caused the fall); Daniel v. William R. Drach Co. , 849 A.2d 1265, 1268

- 73 (Pa. Super. 2004) (affirming denial of new trial where jury found defendant negligent and it was undisputed that plaintiff was injured because jury could have found that plaintiff’s injury was caused by his losing control of the drum he was rolling rather than by the oily, wet surface of the floor for which defendant was responsible). 2 Here, both negligence and the cause of the accident were co ntested and
t he evidence at trial was conflicting

. E vidence was introduced from which the jury could conclude that D ecedent was on the road itself , not on the shoulder, when the accident occurred and could not be seen by a reasonably attentive,

non - negligent driver

. The finding that D efendant was negligent was

_________________ __________ ______ ____ _______ 2 Steudler asserted at oral argument that Daniel is distinguishable because the verdict sheet in Daniel allegedly asked whether the defendant’s negligence caused the accident and the verdict sheets here asked whether D efendant’s negligence caused harm. That argument is without merit. Nothing in this Court’s opinion in Daniel indicates that the verdict s heet asked whether the defendant’s negligence caused the accident . To the contrary, this Court described the jury’s verdict in Daniel as f in d ing that the defendant “ was negligent, but that this negligence was not a substantial factor in causing Mr. Daniel ’ s injury .” 849 A.2d at 1266 (emphasis added) . Moreover, in Koziar , where this Court reversed the grant of a new trial, the verdict sheet was indisti nguishable from the verdict sheets in these cases. 2018 PA Super 331 , * 10 n.7 (verdict sheet asked whether defendants’ negligence was “a factual cause of any harm” to plaintiff).J

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consistent with a conclusion that D ecedent was o n the road and not visible and that Defendant was not distracted and did not leave the roa d

. P laintiffs’ theories of negligence included the claim that D efendant was negligent because his speed, even if he did not exceed the speed limit, was too fast for weather conditions. N.T. , 11/29/17 , at 164, 196, 207

- 08 , 216.
T he jury could therefore co nclude under the evidence before it that although Defendant was negligent, the sole cause of the accident was
D ecedent ’s walking in the dark, in dark clothing, on the road with his back to traffic in poor visibility weather conditions. Accordingly, the ve rdict was not against the weight of the evidence and the trial court properly de nie d Plaintiffs’
motions for a new trial

. Corvin , 184 A.3d at 993, 995

- 96; Daniel , 849 A.2d
at 1273

. 3

_________________ __________ ______ ____ _______ 3 Steudler also argues that the trial court erred in denying a mistrial ba sed on testimony by the police officer that he found a digital scale at the scene of the accident. This argument is barred by waiver. The police officer’s references to a digital scale occurred on the first day of trial, on direct exami nation by Plaintif fs . N.T. , 11/28/17, at 206, 211. Neither plaintiff objected to this evidence or sought any mistrial or instruction from the trial court at that time or at any time while the police officer was testifying. Id. at 206

- 31. Defendant did not elicit any te stimony or evidence concerning the digital scale and made no reference at all to the digital scale, and the two times that it was mentioned by the police officer in Plaintiffs’ questioning were the only references to a digital scale that occurred in front of the jury at any time in the trial. Plaintiffs, however, did not raise any issue concerning the digital scale references until Decedent’s Estate moved for a mistrial well into the next day of trial, after the officer had finished his testimony and addit ional witnesses had testified. N.T. , 11/29/17 , at 101

- 02 . That motion was too late to preserve any claim that the digital scale references required a mistrial. Where a party does not object to a witness’s testimony until after the witnessJ

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Judgments affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/6/19

_________________ __________ ______ ____ _______ has left the s tand, the objection is not timely and the argument that the testimony requires a mistrial is waived. Commonwealth v. Tucker , 143 A.3d 955, 961

- 63 & n.3 (Pa. Super. 2016); Allied Electrical Supply Co. v. Roberts , 797 A.2d 362, 364

- 65 (Pa. Super. 2002).