*1 560 are
clearly applicable. Nor exist at duty does com- Ricketts, mon law. supra. We fail see how possibly succeed at trial he is when unable demon- duty. Klein, (social strate the source of Compare supra duty prevent host owes no guest intoxicated from driv- ing); Chapman, supra (police no duty provide owe addi- protection area). tional crime high Therefore we find no in the abuse court’s refusal to allow amendment. Order affirmed. A.2d
Raymond Paul SAYLOR ROSE, Todaro, Appellant. Deborah J. Deborah J. a/k/a
Superior Pennsylvania. Court of
Argued May 19, 1982. Filed Oct. 1983. *2 Daniel R. Gigler, Pittsburgh, for appellant. Flower,
David J. Somerset, appellee. for HESTER, Before McEWEN JOHNSON, JJ.
JOHNSON, Judge:
This is an appeal from an order granting appellee, Ray- mond Paul Saylor, a new trial. In reviewing the decision of a trial judge grant trial, a new may we not reverse the order, trial judge’s unless he has committed a clear abuse of discretion or an error of law which necessarily controlled the grant of a trial. Shaw, new Gilligan v. (1971); Goldman, Sindler 309 Pa.Super. Finding no abuse of discretion or law,
error of we affirm. 13, 1975, On November was involved in an acci- dent along Route 30 near Jenner Township, Somerset Coun- ty, Pennsylvania. sunset, after Shortly appellee was help- ing to unload boats from a tractor-trailer situated on the southerly berm of the highway, when he was struck by the
extended mirror on a truck. pickup pickup The truck was operated by appellant, Deborah Rose-Todaro.
Appellee commenced an action in for the trespass injuries sustained as a result of the accident. His complaint alleged inter alia that “in negligent failing to oper- ate vehicle so as to assure the entire vehicle was [her] [that] roadway.” within the trial,
The case was tried a jury. before At one of the jury’s basic issues determination location of appellee and the pickup operated by appellant when the During accident occurred. his testimony, appellee estimat- ed that he was six feet from the roadway when the accident occurred. This constituted the only direct reference as to appellee’s position. Pennsylvania Trooper State who investigated the accident testified that the side of the truck *3 from appellee which worked was located approximately five roadway; feet from the and estimated that the mirror of pickup driven by appellant extended at least fifteen inches from the side of the truck. Other from testimony appellee’s concerning position witnesses of trailer at appellee which worked was inconsistent. Appellant’s testi- did mony not indicate where was located when the occurred, accident rather she testified that she steered her vehicle close to the center line discovering after that men working were on the side of the road.
After the testimony close of but to the prior judge’s jury, appellee instructions to the requested that the trial judge instruct the accord the following point with for charge: testimony
9. There is defendant that her vehicle highway. never left the There is testimony that defendant’s vehicle was equipped style with western or overhanging you mirrors. If find that the defendant drove her vehicle so close to the edge roadway so overhanging as to allow the or style western mirror to plaintiff strike the this is negligence part on the of the your defendant and verdict should favor of the plaintiff.
The point was not incorporated into his instruction. During charge, the trial judge instructed as to what it should conclude if it believed one or the other parties, and stated that “it need just find that either [appellee] [not] was six feet off the highway or else he was on the high- way.” He instructed the jury that it could find that “the puts evidence [appellee] somewhere else in between” and “would put [appellant’s] truck somewhere else in between.” Subsequently, jury returned a verdict for appellant. Following the filing of post-trial motions, the granted appellee a new trial. gave He the following reason for awarding a new trial: charge failed to inform the jury, point as 9 validly
[T]he asserts suggests, or that defendant could negligent even her vehicle never left the highway but was driven so close to the edge of the road as to allow her long mirror to extend beyond or to “overhang” the road and to strike presence whose she was aware of as he standing working at the side of the road. In view of the facts that such was an important part plaintiff’s theory argument, that he made a timely specific request written upon the subject matter which approved by the court in conference..., trial court should have affirmed the point and covered its substance in the interest of clarifying what facts would negligence constitute and contributory negligence. Rose,
Saylor v.
No.
303 Civil
slip op.
(C.P.
at 10-11
Somerset County
August
1981).
filed
*4
In
charging
jury, it is the
of the
duty
clarify the issues so that
the jury
comprehend
may
questions they are to decide. Easton National Bank and
Trust, Co. v. Union National
Co.,
Bank and Trust
237
316,
Pa.Super.
(1975).
coverage subject matter of the requested point, apprised not of a set of circumstances jury was relevant their determination whether was liable for having appellee apprised struck and was not of how the law to those circumstances. In applied light of this the trial concluded inadequacy, court that the interests of justice required appellee receive a new trial. trial,
Based on the
presented
point
evidence
at
we think
pertinent.
No. 9 was
could reconcile the inconsist
or,
testimony presented
ent
such reconciliation is not
of credibility. Mapp
possible,
questions
it could determine
Wombucker,
383,
(1966).
Pa.
Since the believe both judge did not commit a clear abuse of discretion or error of he in failing incorpo- law when concluded that rate the appellee’s point substance his instructions he foreclosed from jury, may appellee theory jury may which the have rendered a his Perrone, distinguish 1. We the case of Hrivnak v. 372 A.2d plaintiff There the issue was whether or not the had been plaintiffs injuries struck defendant’s vehicle or whether were plaintiff backing away caused when fell down while from the vehicle. By pleadings proof, simply had to decide whether Here, defendant struck with his vehicle. inasmuch as it is vehicle, by appellant’s certain was struck the issue was one of Appellee’s testimony merely location and distance. estimated where was, purport he he did not to be certain of the distance from the roadway when the occurred. accident Also he introduced evidence to circumstantially by showing show where he was located where the roadway. trailer which he worked at was situated from the We do find, Hrivnak, appellee’s posture as in evidence assumed a directly hostile to the conclusion that he was on the berm and appellant’s highway. vehicle was on the
565 favor.2 We aware are that there are other grounds upon which the could a appellee. render verdict against However, on the based its inadequate instructions verdict could have been founded the erroneous belief that it appellee find for if it found only that appellant drove her truck off the road. This is grounds sufficient a new trial. Hospital, Jones Cf. Montefiore law, Finding no abuse of discretion error of we now awarding affirm the order a appellee new trial. J.,
McEWEN, filed dissenting opinion. a
McEWEN, Judge, dissenting: has provided a majority analysis careful as well as a persuasive most expression of but I am view convinced that parties here by be bound of the jury and, therefore, most respectfully dissent.
As the noted, has majority just accident occurred fallen, after darkness had p.m. at six on a approximately evening, November while helping unload boats from tractor a trailer parked along the southern highway shoulder of a wet from rain and snow. It is undisputed appellee was struck pick-up truck operated by appellant and equipped with extended mirrors. The opinion of the trial judge testimony summarizes the each of the as parties follows:
Plaintiff testified that immediately being before struck he 6 feet standing paved from the portion high- way, disturbed, heard sound of gravel being and was then struck and knocked down. Defendant testified that as approached she the area working she noticed the men road, along she did not realize had she struck anything passed until after she had when she area had hit something pulled realized she off highway to learn stopped happened. what had stated that She e.g. Express, 2. See v. Helms Russell Pa.Super. (1972) (cases therein). cited
at all times her entirely vehicle was on the on highway her traffic, side of the and in her lane of near the ro^d center line. scrupulous While his concern charge fair caused the distinguished Somerset County Judge Charles H. trial, Coffroth overturn the verdict and order a new it is my opinion the instructions not in were the least deficient since the charge of the court in quite covered adequate fashion all of the issues which the jury was consider.
The factual issues were described by the trial judge as follows: essence,
As already substance, we’ve said in plain- tiff’s case is that he was about 6 feet from this highway when he working was with his back toward the highway helping boats; to unload these that he heard shale mov- ing or being thrown or something like that—he heard shale and he turned his head and he hit in the cheek. That caused his injury.
Now, if he was 6 feet off the highway he hit by when was this mirror, car—even extended which according to the testimony extended or one witness said 18 or 19 truck, inches from the obviously truck had to off highway at least the mirror had to be off. If it feet, would be 6 it would look like clearly both of them— the mirror and the truck—would have had on to be berm where he was.
He argues of course that that was negligence, that Mrs. Todaro knew this road. She the mirror knew was there. She even the plaintiff knew was there because she saw him and that this reasonable care under the circumstances. She should stayed on the highway. If you true, would find those facts to be of course you find her solely negligent. could Todaro, hand, Mrs. on the other has a rather completely different version of the says event. She that she was not at all off the highway. According to her testimony, as it, understand she was at all times in a position on the highway when even her mirror would not have extended over ease, if highway. obviously So that was the it logical would seem to conclude that Saylor Mr. was on the highway in get order to hit by Obviously, that mirror. case, that was the you hardly find Mrs. Todaro guilty negligence, you might find Mr. Saylor guilty of negligence.
So a great depends you facts, deal on how find the which Now, witnesses’ testimony you accept. you don’t need to just find that either Saylor Mr. was 6 feet off high- way or else he on It highway. is entirely possible that your judgment put evidence would *7 him somewhere else in between. It is entirely possible that your judgment of the put evidence would Mrs. Toda- ro’s truck somewhere else in between. you
So here get problem into the of deciding what the were, facts where were these people when the collision occurred, you’ve got because to decide whether used they reasonable in getting care there and being there under all the circumstances.
That of summary the factual issues was preceded in the charge aby thorough pertinent legal review of the princi- ples including quite appropriate emphasis upon the notions of negligence and contributory negligence.
The judge concedes in opinion his that there nowas in charge error the but concluded the that omission of the subject point that had been by appellee submitted was error since the charge “failed to thereby inform the jury ... defendant negligent could be even her vehicle left never highway the but was driven so the edge close to of the road as to allow her long mirror beyond to extend or to ‘over- hang’ the road and to strike plaintiff.” agree. do not charge of the court quite satisfactory. was When Judge Coffroth particular decided that this point charge was he necessary was unfair to himself. See Kitchen Bor- ough Grampian,
The basic issue for determination this by jury was the location of the and of the vehicle of the defendant regard edge
with and highway to the the the crucial task of the in dispute testimony was resolve the the concerning Thus, issue. assignment it is seen that the and, of the fact, far from in complex would be considered quite fundamental. The of the details occurrence had the those subject testimony by been all present, specifically, his all of companions, unloading whom were engaged boats from a tractor parked trailer highway, on berm of the as as the well appellant operator striking vehicle state and the trooper investigated who the accident. All of that testimo- then ny subject became of an address by counsel each of the parties, which included reference to extend- noted, ed mirror. already applicable princi- As we have ples of satisfactorily law were defined the court factual summary quite complete and included refer- ence to the fact of the pick-up truck had extended It is my mirrors. view that exer- prudent cised judgment by failing include the requested point for his since there simply instructions no need for the court to place special emphasis issue of the extended mirror in sum- thorough view mary of the factual issues that been provided had by the court. *8 conducted,
Since a and fair trial careful the adequate, the court proper satisfactory, and there substantial certainly evidentiary a basis for the verdict jury, “Although a new is not the imperative. grant of a trial will not by anything new be disturbed us appears it, in the to justify by record the cited [the reason] court ground compel below furnish valid any not] [does verdict-winner, ling the the to appellant, retry the case.” 282, 284, Gombar v. Schaeffer, Pa.Super. 195 A.2d is simply why There no reason here verdict and the rejected required be verdict winner be retry case. right by zealously guarded
The to trial a is a because by jury simply the benefits of are not a theoretical but through proven the centuries so real as become result, a self-evident. As our trust in the value of the jury in resolving verdict of factual issue here type present- from a distinguished complex ed—as verdict a ques- product tion of medical or liability—should be near absolute. a founders concluded that band of the citizenry—peers, says Magna Carta—is suited naturally task of resolving disputes, factual whether the difference in testi- mony personal innocent or influenced by interest; be addition, course, it is an obvious and certain fact that the room court cause—whether it an be of a accused litigant—is, prudently if not never left to sovereign, more always wisely entrusted to the people than to the government or any its branches.
Once we acknowledge that the system value is fact, premise mere but it naturally follows that of a should be considered be controlling and final. While it undisputed is that a safety valve is neces- sary and that a trial judge verdict, should be able to a reject that safety valve should triggered only when there is gross disparity between the verdict and the evidence or there gross has been harmful error. Neither of those tests are here met.
It may well the new trial the majority agrees should be afforded this claimant will witness a verdict for plaintiff replace the verdict for defendant. Most assuredly, however, such a result will not be an effect of the addition of the few brief phrases that trial judge now wishes he had Rather, included his charge. the verdict at the forthcom- is ing trial more likely to be affected factors quite instructions, unrelated including such factors as improved presentation by counsel, or his or the presence of different counsel for or personal the defendant characteristics jurors of dominant or some other such va- gary to which the cause of the prevailing at the party first *9 trial should exposed not be nor the verdict winner be forced to submit. a court is the instructions of purpose
The fundamental fashion a survey basic general, the jury express so that the of law principles the applicable outline of rules as the of certain essential the benefit might upon the evidence testimony, reflect assort members contend that what No one would assemble a verdict. and also student of the law would sophisticated trouble a provided the instruction and while juror; a trouble flask, not expected than a it is something more tois be of trial The most able crystal. fine Waterford resemble concede that the true value in a candid moment will counsel of for assertion provided the fertile field charge is of guidance than the and review rather during appellate error If to the sought supplied jury. direction and is goal assisting court is to achieve re- available for as a credit balance considered verdict, then a verdict of an adverse in the event demption in the trial— final, shortcoming gross absent a should be noted, gross dispari- unless there is as earlier specifically, or there has been the verdict and evidence between ty gross and harmful error. the trial essence, of a mind that both
In am that, therefore, quite well jury performed should stand. Pennsylvania COMMONWEALTH JONES, Jr., Appellant. Hubert Pennsylvania. Superior Court 9, 1982. Submitted June Filed Oct. 1983. Mar. 1984. Appeal Denied Petition for Allowance