Potenburg v. Varner

424 A.2d 1370, 284 Pa. Super. 19, 1981 Pa. Super. LEXIS 2108

• Court: Superior Court of Pennsylvania
• Decided: January 30, 1981
• Docket: 336
• Status: Published

Opinions

HESTER, Judge:

This is an appeal from the Order of the Court of Common Pleas of Delaware County denying appellant’s post trial motions. The procedural history and facts relevant to the issue on appeal are as follows:

On November 6, 1973, appellee Potenburg’s decedent was killed after being struck successively by two vehicles while he was walking on Interstate 95 near the Kerlin Street entrance ramp in Chester, Delaware County. The record shows that appellee Varner drove up the Kerlin Street entrance ramp at approximately 8:00 p. m. It was a dark, clear evening and the road was dry. After determining that it was safe to enter Interstate 95, he started to move forward. After traveling only a short distance, he saw what appeared to be a person standing in the center lane of the three south bound lanes. He attempted to stop but was unable to avoid striking appellee Potenburg’s decedent.

The impact knocked decedent into the left south bound passing lane, where he laid motionless. At that time, cars approaching the accident scene began braking rapidly to avoid appellee Varner’s vehicle and the motionless body.

A short time transpired when appellant Petka approached the scene, travelling at about 50-60 miles an hour, with the speed limit being 60 miles per hour. He observed the vehicles ahead applying their brakes, swerving and skidding. The skidding cars were about ten to fifteen car lengths ahead of him. There was insufficient room to move from the center lane to the right lane, so he steered his vehicle into the left or south bound passing lane. Appellant succeeded in going around appellee Varner’s vehicle, but ran over Joseph Potenburg, who died later that evening as a result of the injuries received.

On November 28, 1978, a jury rendered a verdict in favor of appellee Potenburg in the wrongful death action in the sum of $93,500.00, and $35,000.00 in the survival action, against appellant Petka only. Appellant Petka filed motions for a new trial, a new trial on damages only, judgment notwithstanding the verdict, or remittitur. Following the denial of appellant’s motions, this timely appeal followed.

Appellant contends the trial court erred in its charge to the jury on the doctrine of sudden emergency. We have held that a driver confronted with a sudden emergency not of his or her own making is not guilty of negligence merely because it may appear thereafter that if he or she had acted differently, an accident may have been avoided. All that is required is an honest exercise of judgment even if not the best judgment under the circumstances. Stacy v. Thrower Trucking, Inc., 253 Pa.Super. 150, 384 A.2d 1274 (1978); Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978). The doctrine applies where a driver is confronted with an object that suddenly moves into his assured clear distance ahead. Sullivan v. Wolson, 262 Pa.Super. 397, 396 A.2d 1230 (1979). Where the facts do not conclusively establish the existence of a sudden emergency, it is proper to charge the jury on both the assured clear distance rule and the sudden emergency doctrine in order that the jury has the applicable law to apply to the facts as they find them. Stacy v. Thrower Trucking, Inc., supra. The relevant portion of the questioned charge reads as follows:

“Now the Defendant Petka claims as his defense a doctrine known in the law as the doctrine of Sudden Emergency; that is, he was confronted with a situation of the first accident so suddenly that he reacted to the situation the best way he could, not necessarily using normal judgment, and so ran over the Deceased, Joseph Potenburg.

Now there is contention and it is urged by the Defendant, Petka, that due to the negligent conduct of either the Defendant Varner, or the Deceased Plaintiff, Joseph Potenburg, or both, he was faced at the time of the accident with a very sudden emergency not brought about by any conduct of his own . . . . ”

Appellant argues that this charge directs that negligent conduct on the part of the other parties alone or jointly had to create the emergency in order for the jury to consider the Sudden Emergency Doctrine. The confusion of the jury in this regard was further illustrated by the fact that they had to be charged a second time as to the sudden emergency doctrine. The use of the words “negligent conduct” in the charge was improper and totally misleading. Lewis v. Mellor, supra; Stacy v. Thrower Trucking, supra. We agree that the charge, as given on both occasions, precluded the jury from applying the doctrine in judging the conduct of appellant Petka unless the negligence of one of the other parties created the emergency.

We therefore reverse the order of the trial court and remand for a new trial as to Petka only. Nothing in the record suggests that the jury’s verdict in favor of Varner was affected by the misleading charge as to Petka. Rather, the verdict demonstrates either that the jury found Varner not negligent or that they found the decedent to have been contributorily negligent. The verdict in favor of Varner is not contrary to the evidence.

A defendant whom the jury has exculpated should not be subject to a new trial unless there was trial error as to him. Sternberg v. Dixon, 411 Pa. 543, 192 A.2d 359 (1963), and Greco v. 7-Up Bottling Company of Pittsburgh, 401 Pa. 434, 165 A.2d 5 (1960).

Order reversed and case remanded for a new trial as to appellant Petka only.

CAVANAUGH, J., files a dissenting opinion.