English v. Berninger

34 Pa. D. & C.3d 647, 1984 Pa. Dist. & Cnty. Dec. LEXIS 191
CourtPennsylvania Court of Common Pleas, Lycoming County
DecidedDecember 3, 1984
Docketno. 84-00193
StatusPublished

This text of 34 Pa. D. & C.3d 647 (English v. Berninger) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lycoming County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
English v. Berninger, 34 Pa. D. & C.3d 647, 1984 Pa. Dist. & Cnty. Dec. LEXIS 191 (Pa. Super. Ct. 1984).

Opinion

SMITH, J.

On January 27, 1984, plaintiff filed a complaint in trespass seeking damages for injuries which his son received in an accident with defendant. On October 19,1984, after a trial, the jury returned a verdict in favor of defendant. The court entered judgment based upon the verdict of the jury in favor of defendant and against plaintiff.

Pursuant to Pa.R.C.P. 227.1, plaintiff filed a motion for post trial relief in the nature of a motion for a [648]*648new trial. Plaintiff raises only one issue in his motion, to wit: “The court erred in giving defendant’s point for charge no. 5 on the sudden emergency rule without also charging that the rule will not apply if the emergency arises through the prior negligence of the person in whose behalf the court invokes its protection.” This motion was briefed and argued before the court en banc.

A summary of the undisputed facts is in order. On August 29, 1983, an accident occurred in which Marion Berninger, defendant, struck and injured Leaman English, Jr. On the day of the accident Leaman English, a child of 13 years, was riding his bicycle. He steered.the bicycle onto and across a street on which defendant was driving.

At the trial both parties introduced testimony tending to show that the accident was the fault of the other. Plaintiff’s evidence tended to show that defendant was driving faster than the speed limit and that she was inattentive. Defendant’s testimony was that she was attentive and driving within the speed limit, but that Leaman rode the bicycle in front of her car before she had an opportunity to react to stop the car.

One of the defenses asserted by defendant is known as the “sudden-emergency” doctrine.

“The ‘sudden-emergency’ doctrine is available as a defense to a defendant who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to respond appropriately. . . . The doctrine is successfully applied as a defense where defendant proves that he did not create the emergency, . . . and where he responded in a reasonable fashion. . . . The party confronting the peril simply is not expected to exercise that same degree of care mandated by normal and foreseeable circumstances. In fact, he is not re[649]*649quired to exercise the highest or even an ordinary degree of judgment; therefore, he will not be responsible for any mistake of judgment in extricating himself from the impending dangerous situation.” Chiodo v. Gargloff 7 Downham Trucking Company, 308 Pa. Super. 498, 500, 454 A.2d 645, 646 (1983). (Emphasis added.)

On the apparent grounds of good advocacy defendant excised the second, underlined sentence of the above language of Chiodo, which sets forth the requirement that defendant prove he did not create the emergency and presented the balance of the above quote as defendant’s point for charge no. 5. This redacted version of the sudden-emergency doctrine was given by the court as quoted. After the jury was charged but before the jurors retired, counsel for plaintiff objected to the language of the charge because the charge was missing the language setting forth the exception for a defendant who creates the emergency. The court overruled the objection believing that the language of the exception had been covered by other parts of the charge and because to read the exception to the sudden-emergency doctrine after the entire charge had been completed would unnecessarily highlight it.

Three issues are raised by the motion. First, was the objection to the charge waived by plaintiff by his counsel’s failure to submit a jury charge stating the complete sudden-emergency doctrine or to object to the proposed charge prior to the time that the charge was given to the jury? Second, if there was no waiver of the objection, was the charge in its entirety accurate? Third, if not, was the error of failing to give the proper charge such error as to require the court to grant a new trial?

[650]*650DISCUSSION

The first issue is the timeliness of the objection. Two rules of civil procedure interact in this regard. Pa.R.C.P. 226(a) states in relevant part, “[attorneys shall hand copies of the requested points for charge to the trial judge and to the opposing attorneys before the closing addresses to the jury are begun.” On the other hand, Pa.R.C.P. 227(b) permits exceptions to the jury charge to be taken at any time before the jury retires. Defendant contends that the failure of plaintiff to either submit a point for charge or to object to the point for charge already submitted prior to the time the charge was given acts as a waiver of any objection. Plaintiff relies on the language of Pa.R.C.P. 227(b) in asserting that he may object to the charge until the time the jury retires. We agree with plaintiff.

The law in Pennsylvania is clear. In Boroxie v. Household Finance Company, 472 Pa. 373, 376, 372 A.2d 741, 743 (1977), the Supreme Court stated that to preserve an issue for review “the complaining party must submit a specific point for charge or make a timely specific objection to the charge as given.” See also Bancato v. Koger Co., Inc., 312 Pa. Super. 448, 458 A.2d 1377 (1983). Here plaintiff chose to object to the point for charge after it was given and this was not error.

Defendant cites in her brief a number of cases which she feels stand for the proposition that plaintiff’s objection was made too late in the proceeding; however, these cases deal with the situation where entirely different charges are requested by a party after the charge has been completed. Here, plaintiff was not seeking to have the court read a new or different charge, but rather, plaintiff was objecting to the language of the point for charge as it was given. [651]*651Under the rules of procedure, this is a proper method of challenging the charge and preserving the issues for subsequent review.

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Related

Broxie v. Household Finance Company
372 A.2d 741 (Supreme Court of Pennsylvania, 1977)
Hoeke v. Mercy Hospital of Pittsburgh
445 A.2d 140 (Superior Court of Pennsylvania, 1982)
Brancato v. Kroger Co., Inc.
458 A.2d 1377 (Superior Court of Pennsylvania, 1983)
Chiodo v. Gargloff & Downham Trucking Co.
454 A.2d 645 (Superior Court of Pennsylvania, 1983)
Voitasefski v. Pittsburgh Railways Co.
69 A.2d 370 (Supreme Court of Pennsylvania, 1949)
Sears v. Birbeck
184 A. 6 (Supreme Court of Pennsylvania, 1936)

Cite This Page — Counsel Stack

Bluebook (online)
34 Pa. D. & C.3d 647, 1984 Pa. Dist. & Cnty. Dec. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/english-v-berninger-pactcompllycomi-1984.