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HomeMy WebLinkAbout93-2950 CivilTHOMAS E. HOLLEY and : IN THE COURT OF COMMON PLEAS OF DOROTHY A. HOLLEY, His : CUMBERLAND COUNTY, PENNSYLVANIA Wife, : Plaintiffs : : v. : CIVIL ACTION - LAW : MARGARET A. HORN, : Defendant : NO. 2950 CIVIL 1993 IN RE: PLAINTIFFS' MOTION FOR POST-TRIAL RELIEF BEFORE SHEELY, P.J., HESS and OLER, JJ. ORDER OF COURT AND NOW, this ~ day of August, 1995, after careful consideration of Plaintiffs' Motion for Post-trial Relief, as well as the briefs and oral arguments presented in the matter, the motion is DENIED. BY THE COURT, J~ Wesley Oior,O., J. Joseph M. Melillo, Esq. 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Timothy I. Mark, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant :re THOMAS E. HOLLEY and : IN THE COURT OF COMMON PLEAS OF DOROTHY A. HOLLEY, His : CUMBERLAND COUNTY, PENNSYLVANIA Wife, : Plaintiffs : : v. : CIVIL ACTION - LAW : MARGARET A. HORN, : Defendant : NO. 2950 CIVIL 1993 IN RE: PLAINTIFFS' MOTION FOR POST-TRIAL RELIEF BEFORE SHEELY, P.J., HESS and OLER, JJ. OPINION and ORDER OF COURT Oler, J. For disposition in this negligence action, arising out of a motor vehicle accident, is Plaintiffs' Motion for Post-trial Relief, following a jury verdict in favor of Defendant. The verdict was based on a finding of an absence of negligence on the part of Defendant. Plaintiffs' Motion for Post-trial Relief seeks a new trial. In support of the motion, Plaintiffs argue (1) that the verdict was against the weight of the evidence and (2) that the court committed reversible error in instructing the jury on the doctrine of exculpatory explanation in connection with violation of statute.~ For the reasons stated in this Opinion, Plaintiffs' motion for a new trial must be denied. STATEMENT OF FACTS On Tuesday, June 30, 1992, at approximately 4:00 p.m., Plaintiff Thomas E. Holley and Defendant Margaret A. Horn were ~ Other grounds for a new trial contained in Plaintiffs' Motion for Post-trial Relief were not pursued in Plaintiffs' brief. See C.C.R.P. 210-7 (issues raised but not briefed deemed abandoned). NO. 2950 CIVIL 1993 involved in a head-on motor vehicle collision. The accident occurred on Lisburn Road, a two-lane highway in Lower Allen Township, Cumberland County, Pennsylvania. Immediately prior to the accident, Plaintiff Thomas E. Holley was driving north in a Pontiac Grand Am, and Defendant was traveling south in a Buick Century Wagon. Plaintiff Thomas E. Holley suffered injuries as a result of the accident, and a complaint was filed against Defendant on September 10, 1993, by Mr. Holley and his spouse, Plaintiff Dorothy A. Holley, the latter claiming damages for loss of consortium. A jury trial was held on September 7-9, 1994, with the writer of this Opinion presiding. The jury returned a verdict in favor of Defendant as indicated above. Testimony regarding weather conditions at the time of the accident was consistent throughout the trial. Officer William J. Page, then a police officer with the Lower Allen Township Police Department, received a dispatch at 4:03 p.m. and arrived at the accident scene within minutes.2 He testified that a "severe downpour" immediately preceded the accident.3 Samuel W. Morgan, a police officer with the Lower Allen Township Police Department and an expert in accident reconstruction, was also at the accident scene. Officer Morgan 2 N.T. 15-16. 3 N.T. 22. 2 NO. 2950 CIVIL 1993 described the roadway conditions as wet and rain-covered.4 It was raining "absolutely buckets" with rivulets of water going down the side of the highway, according to his testimony,s These rivulets washed away substantial debris from the accident,6 and visibility was "extremely poor,"7 he stated. The "horrific weather conditions" limited the drivers' visibility and their ability to determine the center lines on the road, according to Officer Morgan.8 Defendant testified that a "horrendous downpour" occurred at the time of the accident.9 Visibility was so poor that "you couldn't see hardly anything," she said.~° Testimony conflicted regarding whether Defendant's vehicle crossed the center line and struck the vehicle being driven by Plaintiff Thomas E. Holley in his lane of travel. Mr. Holley was rendered unconscious and had no recollection of the accident. He remembered only leaving work and waking up in the hospital.~ N.T. 39. Id. N.T. 57-58. N.T. 39. N.T. 57. N.T. 264. N.T. 266. N.T. 197. 3 NO. 2950 CIVIL 1993 Defendant, however, testified that she remembered the events immediately prior to and after the accident. Defendant "believed [she] was as close to the center line as possible, but [she] couldn't tell because of the visibility and the rain."~2 Defendant further testified that the lines on the road were "very faint that day, and with the horrendous downpour, you couldn't even see them.,,~3 Based on the angle of impact, Officer Morgan believed that the Defendant's vehicle had gone from its lane of travel and struck Plaintiff's vehicle in its primary lane of travel.~4 Officer Morgan. could not state, however, how far over the line Defendant's car had crossed. He hypothesized that the distance over the center line could have been as little as one-fourth of an inch.~s Testimony also conflicted as to the position of the cars immediately after the accident. Officer Page arrived on the scene shortly after the collision and after EMS personnel had arrived.~6 The officer stated that Plaintiff's car was off the road and up on a grassy embankment, and that Defendant's car was perpendicular in N.T. 267. N.T. 264. N.T. 48. N.T. 66. N.T. 15. 4 NO. 2950 CIVIL 1993 Plaintiff's lane of travel.~? Officer Morgan arrived at the accident after Officer Page. He testified that Plaintiff's vehicle was on a grassy bank about fourteen feet off the road,~8 and that Defendant's vehicle was straddling both lanes of traffic.~9 Neither vehicle "appear[ed] to have been moved or disturbed since the accident occurred, .... according to him.2° Edward Forsythe, a co-worker of Plaintiff, was one of the first people to arrive at the accident scene. He said he saw Plaintiff's vehicle "setting on the grass on the right hand side of the road.''2~ Mr. Forsythe also noticed debris (pieces of automobile, broken glass, and plastic) in Plaintiff's lane of travel.2~ Defendant, however, did not agree that Plaintiff's car was on the grass section immediately after the accident.23 After the final impact, Plaintiff's car was in his lane, according to Defendant,~4 N.T. 18. N.T. 49. N.T. 50. Id. N.T. 75. N.T. 78. N.T. 93. N.T. 268. 5 NO. 2950 CIVIL 1993 and Defendant could see Plaintiff's head through her windshield.2s She testified that Defendant's fender was touching Plaintiff's left fender and part of his door.2~ Her vehicle was over the line "just maybe a little bit on an angle," she stated. With respect to the Court's charge to the jury at the conclusion of the case, Plaintiffs requested that certain statutory duties under the Vehicle Code be recited with regard to operation of a motor vehicle.27 One of the points requested by Plaintiffs was as follows: Ladies and gentlemen of the jury, consistent with the requirements of Section 3301 of the Motor Vehicle Code with regard to driving on the righthand side of the highway, about which I have previously instructed you, the law further provides that where the Defendant is on the wrong side of the highway when the accident occurs, the burden is on the Defendant to show that she got there without any negligence on her part. If you find that the actual impact between the vehicles took place in Mr. Holley's lane of travel, the burden is on Defendant Horn to explain why she was wholly or partly on the wrong side of the highway at the time of the impact. It is Defendant Horn's burden to establish to your satisfaction that the reason she was on the wrong side of the highway or in the wrong lane was not as a result of any negligence on her part.~8 N.T. 93. N.T. 292. See Plaintiffs' proposed Points for Charge, Nos. 1, 3-6. Plaintiffs' proposed Points for Charge, No. 6. 6 NO. 2950 CIVIL 1993 Defendant's requested point in this regard was as follows: (If you find that the accident occurred in the lane of travel of the other oncoming vehicle, this would be) a violation of the Pennsylvania Motor Code... Ordinarily, an unexplained violation of the Motor Code would constitute evidence of negligence as a matter of law. However, in this case, (there has been) presented an explanation of the circumstances... A person offering an explanation for (the) apparent violation of law has the burden of proof, but once the explanation is given, the presence of (a) car in the wrong lane of traffic (becomes) only evidence of negligence to be considered along with all the other evidence bearing on that issue...29 In instructing on the subject of violation of statute, the Court adopted the language of Sections 3.30 and 3.31 of the Pennsylvania Suggested Standard Civil Jury Instructions as follows: There are several Acts of Assembly which may be pertinent to this case, and I want to go over them with you. By ,Acts of Assembly, I means laws that have been enacted by the legislature in Pennsylvania. These are all provisions in the Vehicle Code. Where there is an Act of Assembly that's pertinent, that Act dictates the duty of care required by someone in the circumstances described in the Act. If you find that there was a violation of an Act, then you must find that the party who violated the Act was negligent as a matter of law. However, before you answer the question of liability in this regard, you must 29 Proposed Points for Charge of Defendant Margaret A. Horn, No. 7. NO. 2950 CIVIL 1993 determine whether this negligence was a substantial factor in bringing about the other parties' injury. So there are two questions that you have to decide. Was there a violation of the statute? And then in order to determine liability based upon that violation, you must also determine whether this negligence per se, that is violation of the statute, was a substantial factor in bringing about the other parties' injury? Let me go over the parts of the Vehicle Code that represent Acts of the legislature. Section 3301 of the Vehicle Code provides as follows: Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway, except as follows: Now I'm going to summarize what follows rather than read all of the exceptions to you. These exceptions have to do with when someone is overtaking and passing another vehicle, when an obstruction exists on the highway, when an official traffic control device is on the highway or governs it, when there is a roadway restricted to one-way traffic, and when a person is making a left turn under certain circumstances. So that's one statute. That's Section 3301 of the Vehicle Code. Under Section 3306 of the Vehicle Code, it's provided as follows: No vehicle shall be driven on the left side of the roadway under any of the following conditions: One of the conditions is as follows: When approaching or upon the crest of a grade or a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction. Under Section 3309 of the Vehicle Code, it's provided as follows: Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others not inconsistent therewith, shall apply. One of those rules is as follows: A vehicle shall be driven as nearly as practicable entirely 8 NO. 2950 CIVIL 1993 within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety. Finally, under Section 3361 of the Vehicle Code, it's provided as follows: No person shall drive a vehicle at a speed greater than is reasonable and prudent under th~ conditions and having regard to the actual - and potential hazards then existing nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. As you can see from the statutes that I've read to you, if you should find that the accident occurred in the lane of travel of the other oncoming vehicle, this would be a violation of the Pennsylvania Vehicle Code. This Act dictates the duty of care normally required of a person in the situation which it governs. Ordinarily, the violation of a statute, such as those that I've read, would constitute negligence as a matter of law. However, in this case with respect to the side of the roadway being driven on, the Defendant has presented evidence in excuse or justification of the alleged violation should you find that a violation occurred. Under such circumstances, the person offering such excuse has the burden of proof. Therefore, in such a case, if you should find that there was a violation of the Act, it would only be evidence of negligence which you should consider along with all the other 9 NO. 2950 CIVIL 1993 evidence presented on the question of whether the Defendant was negligent.3° This instruction was consistent with the points proposed by both sides in connection with an excuse of a driver for being on the wrong side of a highway. At the conclusion of the charge, Plaintiffs' counsel took specific exceptions to the charge in a number of respects, but said only the following in connection with the charge on excuse: Additionally, I'm not sure the facts of this case really developed Defendant Horn actually offered any excuse for being in Mr. Holley's lane. She simply denied that she was.3~ The Court responded as follows: I thought her excuse or justification was that it was raining so hard she couldn't see the center line, so that's why I charged that among other things.~2 Nothing further was said on this matter. STATEMENT OF LAW Weiqht of the evidence. The function of a jury is to compare conflicting testimony. Livergood v. S.J. Groves & Sons Co., 254 F. Supp. 879, 880 (W.D. Pa. 1965). Where conflicting testimony cannot be reconciled, the issue must be resolved by the jury on the basis of credibility. Id. N.T. 317-20. N.T. 332-33. N.T. 332. 10 NO. 2950 CIVIL 1993 A grant of a new trial is in order when the jury's verdict is so contrary to the evidence as to shock one's sense of justice. Bohner v. Stine, 316 Pa. Super. 426, 436, 463 A.2d 438, 443 (1983). Specific exception rule. Under Pennsylvania Rule of Civil Procedure 227(b), "all exceptions to the charge to the jury shall be taken before the jury retires." A party's obligation in this regard is to take "specific exception" in order to preserve an issue for appeal~ Dilliplaine v. Lehigh Valley Trust, 457 Pa. 255, 257-58, 322 A.2d 114, 117 (1974). Violation of statute. Section 3301 of the Vehicle Code states that "[u]pon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway .... " A driver who crosses the center line of a roadway thereby causing a collision is negligent per se, unless such driver proves by the fair credible evidence that his or her vehicle was there through no negligence on his or her part. Farelli v. Marko, 349 Pa. Super. 102, 502 A.2d 1293 (1985). A person offering an explanation for his or her apparent violation bears the burden of proof. Once an explanation is given, the presence of a car in the wrong lane of traffic becomes only evidence of negligence to be considered along with other evidence. Troutman v. Tabb, 285 Pa. Super. 353, 427 A.2d 673, 677 (1981). Several cases in this regard are instructive. In Kensworthy v. Burghart, 241 Pa. Super. 267, 361 A.2d 335 (1976), the presence of ice on a road caused the appellee/defendant 11 NO. 2950 CIVIL 1993 to skid. In considering plaintiff/appellant's contention that a charge on unavoidable accident should not have been given, the Superior Court upheld the instruction on the ground that evidence of covered ice on the road "warranted a charge on unavoidable accident." Kensworthy v. Burghart, 241 Pa. Super. 267, 274, 361 A.2d 335, 338 (1976). In Bumbarger v. Kaminsky, 311 Pa. Super. 177, 457 A.2d 552 ~(1983), the Superior Court reversed a trial court's grant of a new trial where the loner court concluded that the appellant's failure to halt at a stop sign could not be excused despite an icy highway condition. The court determined that the jury did not err when it decided that the icy condition made the accident unavoidable. APPLICATION OF LAW TO FACTS With respect to the weight of the evidence, the Court does not believe that the jury's finding that Defendant had not been proven negligent can be classified as shocking to one's sense of justice. Evidence in the form of testimony as to the sudden lack of visibility due to a cloudburst, the obscuration of the center line in the road, Defendant's impression that she was properly positioned prior to the accident and her version of the vehicles' locations after the accident, as well as the absence of any eyewitness testimony contradicting Defendant's account of events, militates in favor of this conclusion. In its role as factfinder, the jury was free to interpret the evidence presented and to 12 NO. 2950 CIVIL 1993 resolve any conflicts therein. With respect to the jury instruction issue, a resolution of the matter in Defendant's favor can be justified upon two bases. First, it may be doubted whether the comment of Plaintiffs' counsel quoted above a't the conclusion of the charge can properly classified as a specific exception. This is particularly so when the point as charged was consistent with the points on the subject requested by both counsel, and when no further comment was made following the Court's explanation of its rationale for giving the instruction. Second, on the merits it appears that the instruction was in accordance with judicial authority under the circumstances of a sudden, uncontrollable loss of visibility and bearings as the jury could have found occurred herein. The instruction, as noted above, was consistent with the proposed legal point requested by each party on the subject of excuse and was taken virtually verbatim from the suggested standard civil jury instructions.TM 3~ The present case is distinguishable from that of Bohner v. Stine, 316 Pa. Super. 426, 463 A.2d 438 (1983), wherein the Superior Court determined that the verdict finding appellee/defendant not negligent in crossing the center line was against the weight of the evidence. In Bohner, the driver in question admitted that he had panicked and hit his brakes harder than necessary. Similarly, the present case is distinguishable from that of Krupa v. Williams, 316 Pa. Super. 408, 463 A.2d 429 (1983). In Krupa, the Court observed that "although a driver who is where he is supposed to be and is blinded by a glare might not be negligent in a collision, this rule can hardly apply to a situation where glare results from the driver's own negligence." Id. at 417, 463 A.2d at 433. 13 NO. 2950 CIVIL 1993 For the foregoing reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ~/~ day of August, 1995, after careful consideration of Plaintiffs' Motion for Post-trial Relief, as well as the briefs and oral arguments presented in the matter, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Joseph M. Melillo, Esq. 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff Timothy I. Mark, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant :rc 14