Cannon v. Tabor

• Decision Date: 01 June 1994
• Citation: 642 A.2d 1108,434 Pa.Super. 232
• Parties: Hugh F. CANNON, III and Mary Cannon, H/W, Appellants, v. Marek TABOR, Appellee.
• Court: Pennsylvania Superior Court

Page 1108

642 A.2d 1108

434 Pa.Super. 232

Hugh F. CANNON, III and Mary Cannon, H/W, Appellants, v. Marek TABOR, Appellee.

Superior Court of Pennsylvania.

Argued Dec. 14, 1993.

Filed June 1, 1994.

Roger J. Harrington, Philadelphia, for appellants.

Frank S. Blatcher, Thornton, for appellee.

Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.

McEWEN, Judge.

This appeal has been taken from an order which denied the motion for post-trial relief filed by Hugh F. Cannon, III, and Mary Cannon (hereinafter appellants), as a result of which judgment was entered against them and in favor of Marek Tabor (hereinafter appellee), following a jury verdict in favor of appellee in this personal injury action instituted by appellants to recover damages for injuries sustained in an intersectional automobile accident. We vacate the judgment entered in favor of appellee and remand for a new trial.

The complaint, filed by appellants on January 25, 1989, sought damages for the injuries sustained by appellant Hugh F. Cannon, III, as the result of a motor vehicle collision which occurred on May 25, 1988. The accident occurred at the intersection of Abbottsford Road and Fox Street in Philadelphia, at an intersection controlled by a traffic light, as appellant Hugh Cannon was traveling east on Abbottsford Road and appellee was traveling north on Fox Street.

Appellee testified that, as he approached the intersection of the two roads, the light controlling northbound traffic on Fox Street was red and that he came to a complete stop. Appellee further testified that, seconds after stopping on Fox Street, the traffic light turned green, that he looked left and did not see the car operated by appellant Hugh Cannon, and that he then proceeded into the intersection. Once in the intersection, appellee testified that only then did he see the other car rapidly approaching and that he unsuccessfully tried to accelerate out of its path but was unable to avoid the collision.

Appellant Hugh Cannon testified that, as he approached the intersection, he saw appellee's car stopped at the traffic light. Mr. Cannon further testified that he, having the green light, proceeded into the intersection at which point appellee suddenly moved into the intersection against the red light on Fox Street and, although appellant immediately applied his brakes and sounded his horn, he was unable to avoid striking the vehicle driven by appellee.

Following a three-day trial, the jury found that appellee had not been negligent and rendered a verdict in his favor. Appellants filed post-trial motions which requested either the grant of judgment n.o.v. on liability and a new trial limited to the issue of damages or, in the alternative, a new trial. ¹ The trial court denied the motions and this appeal timely followed.

The appellants argue that they are entitled to a new trial since the court instructed the jury on the assured clear distance ahead rule. ² The principles which govern our review of such a claim are well settled:

In reviewing alleged error in jury instructions we apply the standard recited in Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880 (1988), as follows:

Where the motion for a new trial is based upon the sufficiency of the jury charge, we must examine the charge in its entirety against the background of the evidence to determine whether error was committed. If an appellate court concludes that the charge was erroneous, a new trial will be granted only if the jury charge might have prejudiced the appellant. A new trial will be granted even though the extent to which the appellant had been prejudiced is unascertainable. Gallo v. Yamaha Motor Corporation USA, 363 Pa.Super. 308, 321-322, 526 A.2d 359, 366 (1987).

Id. at 453, 539 A.2d at 882. See also: Leaphart v. Whiting Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989), allo. denied, 525 Pa. 619, 577 A.2d 890 (1990); Jistarri v. Nappi, 378 Pa.Super. 583, 549 A.2d 210 (1988). An alleged inadequacy in jury instructions constitutes trial error if the jury was probably misled by what the trial judge said or there is an omission in the charge which amounts to fundamental error. Voitasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949). See also: Sweeny v. Bonafiglia, 403 Pa. 217, 221, 169 A.2d 292, 294 (1961); Giorgianni v. DiSanzo, 392 Pa. 350, 140 A.2d 802 (1958); Hajduk v. Fague, 200 Pa.Super. 55, 186 A.2d 869 (1962). As a general rule, refusal to give a requested instruction containing a correct statement of law is ground for a new trial unless the substance thereof has otherwise been covered in the court's general charge. Butler v. DeLuca, 329 Pa.Super. 383, 390, 478 A.2d 840, 844 (1984); Furey v. Thomas Jefferson University Hosp., 325 Pa.Super. 212, 227, 472 A.2d 1083, 1091 (1984).

Ottavio v. Fibreboard Corp., supra 421 Pa.Super. at 294-95, 617 A.2d at 1301-1302. See also: General Equipment Manufacturers v. Westfield Ins. Co., supra 430 Pa.Super. at 547-548, 635 A.2d at 184; Strickler v. Huffine, supra 421 Pa.Super. at 475, 618 A.2d at 437; Summit Fasteners, Inc. v. Harleysville National Bank & Trust Co., Inc., supra 410 Pa.Super. at 61-63, 599 A.2d at 206; Bailey v. Pennsylvania Elec. Co., 409 Pa.Super. 374, 390-91, 598 A.2d 41, 49 (1991).

The trial judge, quoting Section 3361 of the Motor Vehicle Code, 75 Pa.C.S. § 3361, instructed the jury as follows:

[d]riving a vehicle at a safe speed is also a statutory requirement and states as follows: no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazard that is existing or at a speed greater than will permit a driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad crossing, when approaching or going around curves, or when approaching a hill crest or traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. So this act essentially dictates the duties of care required by someone in situations related to this case. You must determine whether there was any negligence on the part of either of the parties and whether it was a substantial factor in bringing about the plaintiffs' injuries resulting from this statutory requirement.

The operator of a motor vehicle must at all times exercise reasonable care and prudence under the circumstances and must have his car under such control that it could be stopped before doing injury to any person in any situation reasonably apt to arise from the circumstances.

The primary duty of the trial judge in charging the jury is to clarify the legal principles involved so that the jury may comprehend the questions that it must decide. Sedlitsky v. Pareso, 425 Pa.Super. 327, 332, 625 A.2d 71, 74 (1993); Lee v. Pittsburgh Corning Corp., 420 Pa.Super. 423, 430-31, 616 A.2d 1045, 1049 (1992); Spearing v. Starcher, 367 Pa.Super. 22, 29, 532 A.2d 36, 40 (1987); Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 28-29, 527 A.2d 134, 136 (1987), allo. denied, 517 Pa. 629, 539 A.2d 810 (1988). The wide variety of circumstances which may surround any given automobile accident means that the issues presented in each motor vehicle accident case are inherently fact specific. This requires special attention on the part of the trial court to identify the relevant facts and to present to the jury only those legal principles which are relevant to the issues raised by the evidence presented in that particular case. Extended reflection upon the issues presented by this appeal and scrutiny of Pennsylvania case law obliges us to grant appellants a new trial and prompts the notion that it may well be beneficial to reiterate the legal principles applicable to those intersectional accidents in which both parties claim that they had the right-of-way. ³

The assured clear distance rule, which is based upon Section 3361 of the Vehicle Code, 75 Pa.C.S. § 3361, requires that a driver be capable of bringing his/her vehicle to a stop within the distance that he/she can clearly see. Springer v. Luptowski, 535 Pa. 332, 336, 635 A.2d 134, 136 (1993); Dranzo v. Winterhalter, 395 Pa.Super. 578, 593-94, 577 A.2d 1349, 1357 (1990); Spearing v. Starcher, supra at 25-29, 532 A.2d at 38-39; Mickey v. Ayers, 336 Pa.Super. 512, 516-20, 485 A.2d 1199, 1202-1203 (1984); Elder v. Orluck, 334 Pa.Super. 329, 341-42, 483 A.2d 474, 481 (1984), aff'd, 511 Pa. 402, 515 A.2d 517 (1986); Brown v. Schriver, 254 Pa.Super. 468, 471-74, 386 A.2d 45, 47-48 (1978); Unangst v. Whitehouse, supra at 463, 344 A.2d at 698; Reifel v. Hershey Estates, 222 Pa.Super. 212, 214, 295 A.2d 138, 139 (1972).

"Assured clear distance ahead" means only what it says: a clear distance that is assured, that is, one that can reasonably be depended on. The rule does not mean that the motorist must carry in his mind every possible series of combinations which could conspire against him, and that he must transport ready-made solutions to overcome all fortuitous hazards which suddenly face him. Assured does not mean guaranteed.

Fleischman v. City of Reading, 388 Pa. 183, 185-86, 130 A.2d 429, 431 (1957) (emphasis in original).

It is apparent that this distance, the range of a driver's vision, may vary according to the visibility at the time and other attendant circumstances, Stark v. Fullerton Trucking Co., 318 Pa. 541, 179 A. 84 (1935), and that it may be "long, as on a straight road in bright daylight, or it may be shortened by storm, fog, a curve in the road or other conditions." Gaber v. Weinberg, 324 Pa. 385, 388, 188 A. 187, 188 (1936). At night, the assured clear distance is the scope of the driver's headlights....

Unangst v. Whitehouse, supra 235 Pa.Super. at 463, 344 A.2d at 698.

The...