Musso v. Michak

53 Pa. D. & C.2d 433, 1971 Pa. Dist. & Cnty. Dec. LEXIS 391
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJune 25, 1971
Docketno. 1640
StatusPublished

This text of 53 Pa. D. & C.2d 433 (Musso v. Michak) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Musso v. Michak, 53 Pa. D. & C.2d 433, 1971 Pa. Dist. & Cnty. Dec. LEXIS 391 (Pa. Super. Ct. 1971).

Opinion

ROBINSON, P. J.,

Plaintiff in this case sued to recover for personal injuries and automobile damage sustained in a collision with a car operated by defendant. The accident occurred on December 27, 1967 on Interstate Route 81 at a point approximately one mile north of the Moosic Street exit in this county. The issue was tried by a jury which returned a verdict in favor of defendant. Plaintiff filed a motion for a new trial, advancing 16 reasons therefor which complain of the trial judge’s instructions to the jury and other errors. However, plaintiff has only presented three contentions in his brief and oral argument. These are: (1) That the court misstated the evidence in its charge to the jury; (2) that the court refused to charge relevant legal principles; and (3) that the charge as a whole was misleading, inadequate and highly prejudicial. Most of plaintiff’s present complaints were not the subject of proper exceptions at trial and we consider them to be without merit.

The facts of the case may be summarized as follows: December 27, 1967, the day of the accident, was clear and cold, with a temperature of five degrees below zero. Both parties were on their way to work on Interstate Route 81. Plaintiff was proceeding in a northerly direction on the left or passing lane of Route 81 in the City of Scranton. Defendant was operating his vehicle about 90 feet to the rear of plaintiff ’s car in the same direction and in the same lane. The vehicles were traveling at a speed of 50 to 60 miles per hour. Suddenly, and without warning, the [435]*435radiator hose on plaintiff’s automobile gave way and the car was completely enveloped in a cloud of steam and vapor. Plaintiff’s car was obscured from defendant’s vision. Plaintiff applied his brakes attempting to “stop immediately” as “soon” as he could and attempted to direct his vehicle to the left side of the lane when he was struck in the rear by defendant’s vehicle which had been slowed to a speed between 10 to 16 miles per hour. The collision occurred in the left or passing lane of Interstate Route 81, northbound. Defendant testified that plaintiff’s car disappeared in the cloud of steam and could not be seen; that plaintiff had stopped his car in the middle of the left lane in the cloud of steam and that he ran into plaintiff’s vehicle; and that plaintiff’s rear window was covered with snow. Defendant stated that he applied his brakes but could not turn to his right to avoid the steam and vapor because of traffic proceeding in that lane and that a front ornament on the hood of his car could not be seen when the impact took place.

The facts of the accident place it within the category of highway mishaps in which an operator can be properly liable only with respect to harm which proceeds from foreseeable risks or hazards. The duty of protection of persons and property on the highway extends only to reasonably foreseeable risks or hazards. The blinding effect of an instant snowswirl, occurrence of a sudden cloud of steam of vapor or similar happenstance, are in the category of natural hazards of highway travel. Want of ordinary care consists in failure to anticipate what is reasonably probable, not what is remotely possible: Metts v. Griglak, 438 Pa. 392; Brusis v. Henkels, 376 Pa. 226; Tua v. Brentwood Motor Coach Company, 371 Pa. 570. “ ‘. . . the orbit of the danger as disclosed to the eye of reason[436]*436able vigilance would be the orbit of the duty’ Dahlstrum v. Shrum, 368 Pa. 423, 425, quoting Mr. Justice Cardozo in Palsgraf v. Long Island R. Co., 248 N.Y. 339. Nevertheless, the trial judge submitted the issue of negligence to the jury as the trier of the issue which forum decided in favor of defendant.

Defendant complains that the trial judge misstated the evidence as to whether plaintiff’s car was stopped or moving at the moment of the impact. A reading of the charge discloses that the record does not support this contention and that the point was fairly and impartially put to the jury by the trial judge. The evidence on the point was in conflict. Plaintiff stated that his car was not stopped at impact; that it was in the left lane; that he had applied his brakes when the radiator hose broke; and that he was attempting to get his car off the road to the left. On cross-examination, however, plaintiff testified that he was directly in the passing lane when he came to a stop and the impact occurred. Defendant testified that plaintiff “was stopped dead,” obscured by the steam at impact. The record shows that the trial judge fairly submitted the point to the jury, not only in the general instructions but at plaintiff’s request and further instructions at the conclusion of the charge:

“Members of the jury, the learned counsel for the plaintiff has requested that I call your attention to four things that I said, or that at least he understood I said, in connection with reviewing the testimony. First he said the plaintiff did not say he stopped within fifty feet after the hose broke. That is my recollection of his testimony, but as I said before, it is your recollection that governs, not that of the court, not that of counsel, and if your recollection is different, then you take your own recollection of the testimony. If it is your recollection that he did not say he stopped [437]*437within fifty feet after his hose broke, it is your recollection that governs, not that of the court. And may I also remind you if you have any question about it, you can also come into court and have the court reporter read that particular part of the testimony.

“Also the learned counsel for the plaintiff complains that I did not state to you that the plaintiff said this was a moving collision, that is the car was in motion, his car was actually in motion, and was not stopped at that time. And I say to you in this connection again, all of the evidence is for you, and the recollection of the court and the recollection of counsel do not govern your recollection. Your recollection is the one that governs, and if it is your recollection that his car was moving at the time the collision occurred, then your recollection governs. If it is your recollection that the car was stopped, I am not taking this away from you or any question of fact away from you. It is your recollection that governs.”

The charge as a whole reveals no prejudicial error in this respect. In view of the conflict of the evidence, the court was required to instruct as to the factual alternatives and plaintiff’s testimony was not the only evidence on the point.

On the same point, whether plaintiff was stopped or moving at impact, plaintiff complains of error in the reading, at the jury’s request, of plaintiff’s testimony by the court reporter. The facts of this charge are that after the reporter read plaintiff’s testimony on the point and the jury returned to deliberate, the reporter discovered cross-examination of plaintiff that she had not read. Whereupon, the trial judge sent for the jury and directed this part of the record to be read. As this testimony contained an admission by plaintiff that he was stopped in the passing lane at impact, plaintiff claims he was prejudiced. This complaint [438]*438hardly deserves comment. It was the duty of the trial judge to see that all of the testimony requested by the jury was read to them; otherwise prejudice to defendant would result. And it was not error in the absence of any request that the trial judge did not direct the reporter to read other aspects of plaintiff’s evidence.

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Related

Brusis v. Henkels
102 A.2d 146 (Supreme Court of Pennsylvania, 1954)
Kiser v. Schlosser
132 A.2d 344 (Supreme Court of Pennsylvania, 1957)
MOUNT v. Bulifant
265 A.2d 627 (Supreme Court of Pennsylvania, 1970)
Liuzzo v. McKay
152 A.2d 265 (Supreme Court of Pennsylvania, 1959)
Dahlstrom v. Shrum
84 A.2d 289 (Supreme Court of Pennsylvania, 1951)
Metts v. GRIGLAK
264 A.2d 684 (Supreme Court of Pennsylvania, 1970)
Tua v. Brentwood Motor Coach Company
92 A.2d 209 (Supreme Court of Pennsylvania, 1952)
Commonwealth v. Peterman
244 A.2d 723 (Supreme Court of Pennsylvania, 1968)
Palsgraf v. Long Island R.R. Co.
162 N.E. 99 (New York Court of Appeals, 1928)
Cirquitella v. C. C. Callaghan, Inc.
200 A. 588 (Supreme Court of Pennsylvania, 1938)

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Bluebook (online)
53 Pa. D. & C.2d 433, 1971 Pa. Dist. & Cnty. Dec. LEXIS 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/musso-v-michak-pactcompllackaw-1971.