Rosato v. Nationwide Insurance

397 A.2d 1238, 263 Pa. Super. 340, 1979 Pa. Super. LEXIS 1868
CourtSuperior Court of Pennsylvania
DecidedFebruary 16, 1979
Docket725
StatusPublished
Cited by12 cases

This text of 397 A.2d 1238 (Rosato v. Nationwide Insurance) 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
Rosato v. Nationwide Insurance, 397 A.2d 1238, 263 Pa. Super. 340, 1979 Pa. Super. LEXIS 1868 (Pa. Ct. App. 1979).

Opinions

HESTER, Judge:

This trespass action arises as the result of an accident between a pedestrian and a motor vehicle in a residential neighborhood of Northampton County. The jury found both plaintiff and defendant negligent and hence verdict was entered for defendant. Plaintiff-pedestrian, and her hus[343]*343band, took this appeal and allege various errors in the court’s charge and in permitting certain testimony. We find appellants’ arguments without merit and will therefore affirm.

The facts were not complicated. The accident occurred in Bangor Borough on Richmond Avenue, a two-lane residential blacktop street running east and west. The road is bounded on both sides by homes, appellants’ being on the north side about mid-block at number 459. Two lots to the east of appellants’ house, Richmond Avenue is intersected by Wall Street, also a two-lane road, running north and south. A few lots to the west of appellants’ home, Richmond Avenue makes a very sharp curve to the right and becomes Miller Street.

November 26, 1974 was a clear, cold day. At approximately 3:00 P.M. one Betty Lane was driving appellant Theresa Rosato home from their place of employment. Mrs. Lane approached from the west, coming onto Richmond Avenue from Miller Street. She pulled onto the right (south) berm of Richmond, across the street from number 459, and Mrs. Rosato alighted from the passenger side. Mrs. Lane then drove east toward Wall Street, intending to turn left. She noticed coming toward her in the westbound lane appellee Donald C. Daniel, operating a car owned by his employer, appellee Nationwide Insurance Company. Daniel passed Mrs. Lane at approximately 40 m. p. h.

Mrs. Rosato, meanwhile, after leaving the Lane vehicle, began crossing the street to reach her home. When she was half way across, she noticed Daniel’s vehicle bearing down on her. She took a few steps into the westbound lane, turned and faced the car with her purse held up, and was struck. She sustained two broken legs, and was several months in recovering from her injuries.

Suit was instituted by Mrs. Rosato and her husband against Daniel and his employer. Trial lasted three days.

Because the jury found both driver and pedestrian negligent, it is appropriate to note that we will consider only [344]*344those issues which bear on the finding of contributory negligence. Any error which may have been the basis of the finding of appellee’s negligence is of no prejudice to appellants and therefore harmless. See, Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965).

Appellants contend initially that it was error for the court to charge on the “dart-out” or “sudden emergency” doctrine1 since the charge was neither requested by the parties nor justified by the evidence. Although we recognize the trial court cannot assume an advocate’s function of introducing theories not raised by the parties, Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977), nonetheless, we think it proper in certain instances for the court to charge on questions of law property in the case, even though not requested to do so by the litigants. Dunn v. Calpin, 51 Dauph. 192 (1941); Yorkshire Worsted Mills v. National Transportation Company, 28 Del.Co. 402 (1938). The issue in Hrivnak, supra, was not so much whether the court could sua sponte charge on an issue, but whether it could inject a theory permitting the plaintiff to recover on a ground steadfastly resisted by her throughout the trial. Such is not the case instantly, where the dart-out rule, as charged, could have favored either plaintiffs or defendants and was consistent with evidence and theories advanced by both. The rule was neutrally introduced by the court as follows:

[W]hether it will apply in favor of the defendant or in favor of Mrs. Rosato will be for you to determine. But I think it’s proper that you have the rule, . R. 259a.

Further, as it bore on either party’s negligence, the charge was clearly justified by the evidence. Mrs. Rosato testified she walked “in a hurried fashion” across Richmond Avenue, [345]*345but she did not run, and Daniel’s car was suddenly upon her. R. 227a, 66a. Daniel testified, however, that he saw Mrs. Rosato “running” into the street and that he could not avoid hitting her. R. 192~195a. Such conflicting testimony created a factual dispute properly submitted to the jury. The “dart-out” charge in these circumstances did not cast the court in the role of an advocate, a posture condemned in Hrivnak.

Appellants next contend the investigating police officer should not have been permitted to state that, based upon his examination of the accident scene, he “could not see where there had been any speeding whatsoever.” R. 215a. Officer Heard had previously testified that the skid marks from Daniel’s car were 88 feet long and that he had investigated countless such accidents in his 25 years experience. It had already been established that, since there were no posted speed limits on Richmond Avenue, the limit was 55 m. p. h. Appellants’ argument is essentially that Officer Heard’s quoted remark was eonclusory and invaded the province of the jury.

It is true that, while lay witnesses are permitted to express opinion estimates of vehicle speed in numerical terms, terms such as “fast”, “slow”, or “excessive” and the like are eonclusory and lack evidentiary value. Starner v. Wirth, 440 Pa. 177, 269 A.2d 674 (1976). Further, investigating police officers are permitted to state their observations and measurements, but “grossly speculative” opinions are forbidden because of their tendency to taint the verdict. Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657 (1964). However, an officer may, based upon skid measurements and his expertise, state the approximate speed of a car even though he was not present at the accident. Rutovitsky v. Magliocco, 394 Pa. 387, 147 A.2d 153 (1959).

We think the instant, isolated remark of Officer Heard was not the type of “gross speculation” found offensive in Brodie, supra. Taken in context, Officer Heard’s [346]*346statement was simply an indication that appellee’s car was not, at the time of the accident, travelling faster than 55 m. p. h. Such a remark can hardly be said to invade the jury’s realm since several other witnesses, including Daniel, testified the car’s speed was approximately 40 m. p. h. and that there was much tire squealing. (R. 132-3a.; 143a; 191-2a.). Further, the court charged on the “assured clear distance” rule. See 75 Pa.C.S.A. § 3361. We think there was a wealth of testimony for the jury to consider in deciding whether Daniel drove too fast for conditions and that Officer Heard’s remark was not such as to require reversal.

Appellants finally assert a number of errors in the court’s charge.

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Rosato v. Nationwide Insurance
397 A.2d 1238 (Superior Court of Pennsylvania, 1979)

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Bluebook (online)
397 A.2d 1238, 263 Pa. Super. 340, 1979 Pa. Super. LEXIS 1868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosato-v-nationwide-insurance-pasuperct-1979.