Saylor v. Rose

Supreme Court of Pennsylvania

Saylor v. Rose

466 A.2d 686, 319 Pa. Super. 560, 1983 Pa. Super. LEXIS 4079

CourtSupreme Court of Pennsylvania

DecidedOctober 7, 1983

Docket861

StatusPublished

Cited by9 cases

This text of 466 A.2d 686 (Saylor v. Rose) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Saylor v. Rose, 466 A.2d 686, 319 Pa. Super. 560, 1983 Pa. Super. LEXIS 4079 (Pa. 1983).

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JOHNSON, Judge:

This is an appeal from an order granting appellee, Raymond Paul Saylor, a new trial. In reviewing the decision of a trial judge to grant a new trial, we may not reverse the trial judge’s order, unless he has committed a clear abuse of discretion or an error of law which necessarily controlled the grant of a new trial. Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Sindler v. Goldman, 309 Pa.Super. 7, 454 A.2d 1054 (1982). Finding no abuse of discretion or error of law, we affirm.

On November 13, 1975, appellee was involved in an accident along Route 30 near Jenner Township, Somerset County, Pennsylvania. Shortly after sunset, appellee was helping to unload boats from a tractor-trailer situated on the southerly berm of the highway, when he was struck by the [562]*562extended mirror on a pickup truck. The pickup truck was operated by appellant, Deborah Rose-Todaro.

Appellee commenced an action in trespass for the injuries sustained as a result of the accident. His complaint alleged inter alia that appellant was negligent “in failing to operate [her] vehicle so as to assure [that] the entire vehicle was within the roadway.”

The case was tried before a jury. At trial, one of the basic issues for the jury’s determination was the location of appellee and the pickup operated by appellant when the accident occurred. During his testimony, appellee estimated that he was six feet from the roadway when the accident occurred. This constituted the only direct reference as to appellee’s position. The Pennsylvania State Trooper who investigated the accident testified that the side of the truck from which appellee worked was located approximately five feet from the roadway; and estimated that the mirror of the pickup driven by appellant extended at least fifteen inches from the side of the truck. Other testimony from appellee’s witnesses concerning the position of trailer at which appellee worked was inconsistent. Appellant’s testimony did not indicate where appellee was located when the accident occurred, rather she testified that she steered her vehicle close to the center line after discovering that men were working on the side of the road.

After the close of testimony but prior to the trial judge’s instructions to the jury, appellee requested that the trial judge instruct the jury in accord with the following point for charge:

9. There is testimony by the defendant that her vehicle never left the highway. There is testimony that the defendant’s vehicle was equipped with western style or overhanging mirrors. If you find that the defendant drove her vehicle so close to the edge of the roadway so as to allow the overhanging or western style mirror to strike the plaintiff this is negligence on the part of the defendant and your verdict should be in favor of the plaintiff.

[563]*563The point was not incorporated into his instruction. During the charge, the trial judge instructed the jury as to what it should conclude if it believed one or the other of the parties, and stated that “it need [not] just find that either [appellee] was six feet off the highway or else he was on the highway.” He instructed the jury that it could find that “the evidence puts [appellee] somewhere else in between” and “would put [appellant’s] truck somewhere else in between.” Subsequently, the jury returned a verdict for appellant.

Following the filing of post-trial motions, the trial judge granted appellee a new trial. He gave the following reason for awarding a new trial:

[T]he charge failed to inform the jury, as point 9 validly asserts or suggests, that defendant could be negligent even if her vehicle never left the highway but was driven so close to the edge of the road as to allow her long mirror to extend beyond or to “overhang” the road and to strike plaintiff whose presence she was aware of as he was standing or working at the side of the road. In view of the facts that such was an important part of plaintiff’s theory and argument, that he made a timely and specific written request for a charge upon the subject matter which was approved by the court in conference..., the trial court should have affirmed the point and covered its substance in the interest of clarifying what facts would constitute negligence and contributory negligence.

Saylor v. Rose, No. 303 Civil 1977, slip op. at 10-11 (C.P. Somerset County filed August 18, 1981).

In charging the jury, it is the duty of the trial judge to clarify the issues so that the jury may comprehend the questions they are to decide. Easton National Bank and Trust, Co. v. Union National Bank and Trust Co., 237 Pa.Super. 316, 352 A.2d 544 (1975). If he fails to clarify the issues and the application of law to the facts, a fair trial is not present. Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); see also Randolph v. Campbell, 360 Pa. 453, 62 A.2d 60 (1948). It is obvious from a reading of the passage quoted above that the trial judge felt that absent adequate [564]*564coverage of the subject matter of the requested point, the jury was not apprised of a set of circumstances relevant to their determination of whether appellant was liable for having struck appellee and was not apprised of how the law should be applied to those circumstances. In light of this inadequacy, the trial court concluded that the interests of justice required that appellee receive a new trial.

Based on the evidence presented at trial, we think point No. 9 was pertinent. The jury could reconcile the inconsistent testimony presented or, if such reconciliation is not possible, it could determine questions of credibility. Mapp v. Wombucker, 421 Pa. 383, 219 A.2d 681 (1966). In so doing, it was at liberty to believe all or part of the testimony of appellee or appellant. See e.g. Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975). Thus, the jury could partially believe both appellee and appellant and find that appellee, while on the berm, was struck when the mirror on appellant’s pickup extended from the road over the berm.¹

Since the jury could partially believe both parties, the trial judge did not commit a clear abuse of discretion or error of law when he concluded that in failing to incorporate the substance of appellee’s point in his instructions to the jury, he may have foreclosed appellee from a theory upon which the jury may have rendered a verdict in his [565]*565favor.² We are aware that there are other grounds upon which the jury could render a verdict against appellee. However, based on the inadequate instructions its verdict could have been founded upon the erroneous belief that it could only find for appellee if it found that appellant drove her truck off the road. This is sufficient grounds for a new trial. Cf. Jones v. Montefiore Hospital, 494 Pa.

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JOHNSON, Judge:

This is an appeal from an order granting appellee, Raymond Paul Saylor, a new trial. In reviewing the decision of a trial judge to grant a new trial, we may not reverse the trial judge’s order, unless he has committed a clear abuse of discretion or an error of law which necessarily controlled the grant of a new trial. Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Sindler v. Goldman, 309 Pa.Super. 7, 454 A.2d 1054 (1982). Finding no abuse of discretion or error of law, we affirm.

On November 13, 1975, appellee was involved in an accident along Route 30 near Jenner Township, Somerset County, Pennsylvania. Shortly after sunset, appellee was helping to unload boats from a tractor-trailer situated on the southerly berm of the highway, when he was struck by the [562]*562extended mirror on a pickup truck. The pickup truck was operated by appellant, Deborah Rose-Todaro.

Appellee commenced an action in trespass for the injuries sustained as a result of the accident. His complaint alleged inter alia that appellant was negligent “in failing to operate [her] vehicle so as to assure [that] the entire vehicle was within the roadway.”

The case was tried before a jury. At trial, one of the basic issues for the jury’s determination was the location of appellee and the pickup operated by appellant when the accident occurred. During his testimony, appellee estimated that he was six feet from the roadway when the accident occurred. This constituted the only direct reference as to appellee’s position. The Pennsylvania State Trooper who investigated the accident testified that the side of the truck from which appellee worked was located approximately five feet from the roadway; and estimated that the mirror of the pickup driven by appellant extended at least fifteen inches from the side of the truck. Other testimony from appellee’s witnesses concerning the position of trailer at which appellee worked was inconsistent. Appellant’s testimony did not indicate where appellee was located when the accident occurred, rather she testified that she steered her vehicle close to the center line after discovering that men were working on the side of the road.

After the close of testimony but prior to the trial judge’s instructions to the jury, appellee requested that the trial judge instruct the jury in accord with the following point for charge:

9. There is testimony by the defendant that her vehicle never left the highway. There is testimony that the defendant’s vehicle was equipped with western style or overhanging mirrors. If you find that the defendant drove her vehicle so close to the edge of the roadway so as to allow the overhanging or western style mirror to strike the plaintiff this is negligence on the part of the defendant and your verdict should be in favor of the plaintiff.

[563]*563The point was not incorporated into his instruction. During the charge, the trial judge instructed the jury as to what it should conclude if it believed one or the other of the parties, and stated that “it need [not] just find that either [appellee] was six feet off the highway or else he was on the highway.” He instructed the jury that it could find that “the evidence puts [appellee] somewhere else in between” and “would put [appellant’s] truck somewhere else in between.” Subsequently, the jury returned a verdict for appellant.

Following the filing of post-trial motions, the trial judge granted appellee a new trial. He gave the following reason for awarding a new trial:

[T]he charge failed to inform the jury, as point 9 validly asserts or suggests, that defendant could be negligent even if her vehicle never left the highway but was driven so close to the edge of the road as to allow her long mirror to extend beyond or to “overhang” the road and to strike plaintiff whose presence she was aware of as he was standing or working at the side of the road. In view of the facts that such was an important part of plaintiff’s theory and argument, that he made a timely and specific written request for a charge upon the subject matter which was approved by the court in conference..., the trial court should have affirmed the point and covered its substance in the interest of clarifying what facts would constitute negligence and contributory negligence.

Saylor v. Rose, No. 303 Civil 1977, slip op. at 10-11 (C.P. Somerset County filed August 18, 1981).

In charging the jury, it is the duty of the trial judge to clarify the issues so that the jury may comprehend the questions they are to decide. Easton National Bank and Trust, Co. v. Union National Bank and Trust Co., 237 Pa.Super. 316, 352 A.2d 544 (1975). If he fails to clarify the issues and the application of law to the facts, a fair trial is not present. Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); see also Randolph v. Campbell, 360 Pa. 453, 62 A.2d 60 (1948). It is obvious from a reading of the passage quoted above that the trial judge felt that absent adequate [564]*564coverage of the subject matter of the requested point, the jury was not apprised of a set of circumstances relevant to their determination of whether appellant was liable for having struck appellee and was not apprised of how the law should be applied to those circumstances. In light of this inadequacy, the trial court concluded that the interests of justice required that appellee receive a new trial.

Based on the evidence presented at trial, we think point No. 9 was pertinent. The jury could reconcile the inconsistent testimony presented or, if such reconciliation is not possible, it could determine questions of credibility. Mapp v. Wombucker, 421 Pa. 383, 219 A.2d 681 (1966). In so doing, it was at liberty to believe all or part of the testimony of appellee or appellant. See e.g. Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975). Thus, the jury could partially believe both appellee and appellant and find that appellee, while on the berm, was struck when the mirror on appellant’s pickup extended from the road over the berm.¹

Since the jury could partially believe both parties, the trial judge did not commit a clear abuse of discretion or error of law when he concluded that in failing to incorporate the substance of appellee’s point in his instructions to the jury, he may have foreclosed appellee from a theory upon which the jury may have rendered a verdict in his [565]*565favor.² We are aware that there are other grounds upon which the jury could render a verdict against appellee. However, based on the inadequate instructions its verdict could have been founded upon the erroneous belief that it could only find for appellee if it found that appellant drove her truck off the road. This is sufficient grounds for a new trial. Cf. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981).

Finding no abuse of discretion or error of law, we now affirm the order awarding appellee a new trial.

McEWEN, J., filed a dissenting opinion.

¹

. We distinguish the case of Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977). There the issue was whether or not the plaintiff had been struck by defendant’s vehicle or whether plaintiffs injuries were caused when plaintiff fell down while backing away from the vehicle. By the pleadings and proof, the jury had to decide simply whether defendant struck plaintiff with his vehicle. Here, inasmuch as it is certain appellee was struck by appellant’s vehicle, the issue was one of location and distance. Appellee’s testimony merely estimated where he was, he did not purport to be certain of the distance from the roadway when the accident occurred. Also he introduced evidence to show circumstantially where he was located by showing where the trailer at which he worked was situated from the roadway. We do not find, as in Hrivnak, that appellee’s evidence assumed a posture directly hostile to the conclusion that he was on the berm and appellant’s vehicle was on the highway.

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466 A.2d 686, 319 Pa. Super. 560, 1983 Pa. Super. LEXIS 4079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saylor-v-rose-pa-1983.

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