Farelli v. Marko

502 A.2d 1293, 349 Pa. Super. 102, 1985 Pa. Super. LEXIS 10519
CourtSuperior Court of Pennsylvania
DecidedDecember 31, 1985
DocketNo. 1518
StatusPublished
Cited by11 cases

This text of 502 A.2d 1293 (Farelli v. Marko) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farelli v. Marko, 502 A.2d 1293, 349 Pa. Super. 102, 1985 Pa. Super. LEXIS 10519 (Pa. Ct. App. 1985).

Opinions

FEENEY, Judge:

The facts of this case essentially presented the jury with the solitary issue of whether the appellee’s explanation for his cross-over was credible. The jury obviously found it to be credible. Because we believe that decision on credibility to be reasonable, and the appellee’s explanation sufficient to support the verdict, we affirm.

In the early evening of June 18, 1979, a Chevrolet Monte Carlo driven by the appellee, Brian Marko, crossed over from the northbound lanes of traffic on Route 51 near [104]*104Pittsburgh’s Liberty Tunnels and struck a southbound Volkswagon Rabbit containing the appellants, Thomas Farrelli and his wife, Marybelle Farrelli. Eyewitness testimony proffered by the appellants show that the Monte Carlo suddenly shot across the center line which divided the four lanes and collided with the front left area of appellants’ car. Brian Marko testified that he was travelling in the right-hand, northbound lane of Route 51 when he suddenly pulled to the berm on his right in order to avoid a collision with a car which was rapidly overtaking him from the rear. Unable to get his car to return to the highway with a little turn of his steering wheel and quickly approaching a telephone pole, the appellee jerked the wheel to the left and was propelled as from a “slingshot” across two lanes and into the oncoming southbound Volkswagon.

After the jury returned a defense verdict, the Honorable Marion K. Finkelhor denied appellants’ motion for a new trial. Thomas Farelli brought this appeal individually and as the administrator of the estate of his deceased wife.1

There are two questions for review:

1. Did the trial court commit reversible error by its use of the phrase “sudden emergency” in a memorandum accompanying the order denying the motion for a new trial after it had refused to instruct the jury on the sudden emergency doctrine?
2. In a cross-over case is a defendant’s explanation of his presence on the wrong side of the road sufficient to support a defense verdict?

At trial, the court refused to instruct the jury that it could find that the defendant, Brian Marko, had been confronted with a “sudden emergency.” Appellants, however, mistakenly believe that this refusal to so instruct and the jury’s defense verdict are irreconcilable. The allegation that the trial court’s memorandum which specifically mentions “sudden emergency” is inconsistent with its refusal to [105]*105charge the jury on “sudden emergency” is of little significance.

Assuming arguendo that its inclusion of the reference to a “sudden emergency” was intentional and erroneous, the verdict may nonetheless stand if the record facts support it. The Superior Court in Cohen v. Jenkintown Cab Co., 300 Pa.Super. 528, 446 A.2d 1284 (1982) clearly noted:

“[i]t is the order, and not the opinion, which is controlling. The appeal is from the order, not the opinion.” Id., 300 Pa.Superior Ct. at 538, n. 8, 446 A.2d at 1289, n. 8.

Appellants’ other argument, that the defense verdict is against the weight of the evidence, in essence claims that the trial court’s denial of appellee’s request for an instruction on the sudden emergency doctrine removed as a matter of law the only obstacle to a verdict in favor of the plaintiffs. When considering a motion for a new trial on the grounds that the verdict was against the weight of the evidence, all evidence must be reviewed. Sperrazza v. Cambridge Mutual Fire Insurance Co., 313 Pa.Super. 60, 64 n. 3, 459 A.2d 409, 411, n. 3 (1983). The record discloses stories by the appellants and appellee. The jury apparently believed both stories. Does the evidence demand that the appellee’s story not be believed? Witness credibility was the determinant. Brian Marko explained his actions and the jury believed him.

The distinguished Justice Musmanno once described, in very human terms, the circumstances where the grant of a new trial is in order:

“When a jury’s finding is so opposed to demonstrated facts that, looking at the verdict, the mind stands baffled, the intellect searches in vain for cause and effect, and reason rebels against a bizarre and erratic conclusion, it can be said that the verdict is shocking and unjust, and that a new trial is imperative.” Green v. Johnson, 424 Pa. 296, 298, 227 A.2d 644, 645 (1967).

This was not the case here. The mention of “sudden emergency” which accompanied the denial of appellants’ [106]*106motion for a new trial is of no importance since the record contains facts which make the defense verdict supportable.

It is beyond peradventure that: (1) a driver who crosses the center line of a roadway thereby causing a collision is negligent per se, Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983); (2) unless such driver proves by the fair weight of the credible evidence that his vehicle was there through no negligence on his part, Kenworthy v. Burghart, 241 Pa.Super. 267, 361 A.2d 335 (1976). By the denial of the “sudden emergency” instruction request, the jury was prevented from utilizing that specific doctrine in its deliberations. Nevertheless, since this is a negligence case the fact finder is permitted to formulate the parameters of the duty of care and decide whether appellee’s actions constituted a breach of that duty.

In its brief, appellants alleged that appellee’s explanation for being on the wrong side of the road was insufficient to support a defense verdict as were those in the cases of Denman v. Rhodes, 206 Pa.Super. 457, 214 A.2d 274 (1965), allocatur denied (1966); Blockinger v. Schweitzer, 419 Pa. 342, 214 A.2d 244 (1965); Herrold v. Waddington, 394 Pa. 635, 148 A.2d 923 (1959); and Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983). For the following reasons, these cases do not require a finding that the verdict in the instant case is against the weight of the evidence.

In Denman v. Rhodes, supra, three defense witnesses gave testimony which presented the jury with a prior inconsistent statement by the defendant and his admission of fault, both of which were absent in the instant case. The investigating police officer testified that Rhodes stated at the scene that he was travelling north and all of a sudden the road narrows down and he struck what he thought was a pothole, lost control of his car, veered across and hit a car travelling southbound. 206 Pa.Super. at 459, 214 A.2d at 275. The defendant then testified that the operator of the vehicle preceding the Denman automobile did not dim his [107]*107lights and “I pulled off the edge of the road and I fell into a rut ...

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Cite This Page — Counsel Stack

Bluebook (online)
502 A.2d 1293, 349 Pa. Super. 102, 1985 Pa. Super. LEXIS 10519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farelli-v-marko-pasuperct-1985.