Farelli v. Marko

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 Pittsburgh’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 charge 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’ motion 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 lights and “I pulled off the edge of the road and I fell into a rut ... and I pulled on my steering wheel to come up out of that rut and when I did it started to slide sideways.” 206 Pa.Super. at 459, 214 A.2d at 275. Finally, one of the plaintiffs testified that the defendant said “that he was terribly sorry but it was his fault.” 206 Pa.Super. at 459, 214 A.2d at 275. Had the jury in the instant case been faced with such facts its defense verdict would be less reasonable.

Blockinger v. Schweitzer, supra, involved the “assured clear distance” rule since the defendant’s car skidded when a slower moving vehicle darted into the left lane in front of the defendant’s car. The court also cautioned that the defendant must be on the alert for this act when the right lane of traffic is at a standstill. Unlike Blockinger, in the instant case the disrupting force was to Brian Marko’s rear, and the traffic was not at a standstill. Finally, the plurality opinion by Justice Musmanno lacks precedential value as three justices dissented on the basis that the verdict was not against the weight of the evidence, and two justices concurred in the result but filed no opinion.

In Herrold v. Waddington, supra, the Supreme Court in affirming the grant of a new trial referred to a part of the trial court’s opinion:

“We feel that the testimony of the defendant in this case is so weak, vague and contradictory that the verdict was clearly against the weight of the evidence and that the plaintiff is, therefore, entitled to a new trial.” Id., 394 Pa. at 639, 148 A.2d at 925.

There the total absence of credibility in the defendant’s testimony easily constitutes a factual distinction which precludes application of the Herrold court’s reasoning to the instant case. One of the plaintiffs testified that the defendant, Mr. Waddington, came to her hospital room the day after the accident and told her that he did not remember how the accident happened and requested her to assist him in making his police report of the accident. 394 Pa. at 637, 148 A.2d at 924. Thereafter, Mr. Waddington testified at a justice of the peace’s hearing that he did not know how the accident happened nor how fast he was going. 394 Pa. at 637-38, 148 A.2d at 924. The defendant’s incredible trial testimony is described by the court in the following excerpt:

“He testified that the plaintiff drove his car over into the defendant’s lane of travel right in front of him and that the front of the Herrold car struck his car. He states that he began to get his memory back the day after the accident, that he had regained it somewhat by the time of the hearing before the justice of the peace ... and had regained it completely when he testified at the trial. Although he testified that the front of his car and the front of the Herrold car struck each other, his own exhibits show that this is not so. He stubbornly insisted on saying that the bumper on the Herrold car and the front end of the Herrold car were damaged when his own exhibits contradicted this. The exhibits show that the Waddington car was damaged in front and that the Herrold car was struck from the side. Taken in connection with his own exhibits the testimony of the defendant is incredible and should not be allowed to stand.” 394 Pa. at 638, 148 A.2d at 925.

The testimony of Brian Marko in no fashion approaches that of Mr. Waddington which, in itself, supports Hie finding that the Herrold verdict was against the weight of the evidence.

Finally, Bohner v. Stine, supra, is not applicable to the instant case. There, the Superior Court commenting on the defendant’s testimony stated:

“The sudden slowing or stopping of a vehicle ahead must be anticipated.” 316 Pa.Super. at 437, 463 A.2d at 443. (emphasis added).

Brian Marko’s evasive maneuver is not within the purview of the assured clear distance rule as one is not required to anticipate that a vehicle might suddenly clip his rear fender as it overtakes him. Additionally, unlike Marko, the defendant in Bohner “admitted to panicking [sic] and hitting his brakes harder than he had to thereby losing control of his automobile on the wet roadway.” 316 Pa.Super. at 437, 463 A.2d at 443.

This verdict is supported by credible evidence. Accordingly, the judgment of the lower court is affirmed.

DEL SOLE, J., joins in this opinion.

HESTER, J., files a dissenting opinion.

1 Her death was unrelated to the accident.