Kenworthy v. Burghart

• Decision Date: 28 June 1976
• Citation: 361 A.2d 335,241 Pa.Super. 267
• Parties: Walter J. KENWORTHY and Louise M. Kenworthy, Appellants, v. William BURGHART.
• Court: Pennsylvania Superior Court

Page 335

361 A.2d 335

241 Pa.Super. 267

Walter J. KENWORTHY and Louise M. Kenworthy, Appellants, v. William BURGHART.

Superior Court of Pennsylvania.

June 28, 1976.

George J. O'Neill, Philadelphia, for appellants.

Robert B. Surrick, Media, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

Appellants, Walter and Louise Kenworthy, filed a complaint in trespass for injuries suffered by Mrs. Kenworthy when she was allegedly struck by a car driven by appellee on January 4, 1968. ¹ On March 1 1973, after a four-day trial, the jury returned a verdict in appellee's favor. Appellant's motion for a new trial was denied by the trial judge sitting as a court En banc, 62 Del.Co. 80 (1974), and this appeal followed. We reverse.

The evidence may be summarized as follows. On January 4, 1968, appellant was employed as a crossing guard at the intersection of Glendale Avenue and Oak Way in Havertown Township, Delaware County. The weather was cold. It had snowed several days before the accident, and, although the parties disputed its extent, there was ice on Glendale Avenue. Appellant had been working at the intersection for approximately one-half hour before the accident, and testified that many other cars proceeding south on Glendale Avenue passed her without incident. At approximately 3:00 p.m., appellant saw appellee's car travelling south on Glendale, towards its intersection with Oak Way. Appellant had just completed supervising the crossing of some school-children, and was walking back towards the east curb of Glendale Avenue when she first observed appellee's car, roughly three hundred feet from the intersection. Estimating that the speed of the car was approximately fifty miles per hour, she began to walk quickly towards the east sidewalk of Glendale Avenue, and when she saw the car skidding across Glendale Avenue and heading towards her, she started to run. According to appellant, appellee's car ran over the curb and onto the sidewalk, striking her right thigh and knocking her onto her buttocks. Appellee, on the other hand, insisted that his car stopped at the curb and did not strike appellant. ² Appellant's injuries necessitated medical care that included a three-week period in traction at a Philadelphia hospital.

Appellant advances five contentions on this appeal: that the lower court applied the incorrect standard of review in determining whether the verdict was against the weight of the evidence; that the trial judge's bias and prejudicial remarks deprived appellant of a fair trial; that the judge's charge on the law concerning skidding was incorrect; that the judge should not have charged on the doctrine of unavoidable accident; and that the judge erred in charging that the jury could draw an adverse inference from the failure of appellant's husband to testify, and, conversely, in failing so to charge concerning appellee's failure to call one of his examining physicians. We shall not, however, address all of these contentions. The first, concerning the standard of review to be applied in determining the weight of the evidence, was not briefed or argued to the lower court; ³ it was therefore abandoned. Orga v. Pittsburgh Rys. Co., 155 Pa.Super. 82, 85, 38 A.2d 391, 392 (1944); Cf. Commonwealth v. Keysock, 236 Pa.Super. 474, 478--80, 345 A.2d 767, 770 (1975). The last, on adverse inferences, presumably will not recur on retrial.

I

Did the Trial Judge's Bias and Prejudicial Remarks Deprive

Appellant of a Fair Trial?

Counsel for appellant has devoted seventeen pages of his brief to the argument that appellant's case was irremediably prejudiced by 'the trial judge's rulings questions, remarks, and general hostile attitude throughout the trial in the presence of the jury.' (Brief for Appellant at 12--28) In considering this argument, we have borne in mind the admonition by Chief Justice Kephart that since allegations of bias and prejudice 'constitute the most serious charges that can be hurled against a judge, the record must clearly show prejudice, bias, capricious disbelief or prejudgment' before reversal is warranted on this ground alone. Pusey's Estate, 321 Pa. 248, 262, 184 A. 844, 850 (1936); Fischer v. Commercial National Bank, 321 Pa. 200, 201, 184 A. 57, 58 (1936) ('(n)ew trials for such reasons should be avoided unless the errors complained of are plainly prejudicial to one of the parties'). When the trial judge is assailed as lacking impartiality, '(t)he only way to meet this point is to examine the testimony, not depending upon sentences plucked out here and there.' Biggs v. Public Service Coordinated Transport, 280 F.2d 311, 314 (3d Cir. 1960) (Goodrich, J.).

We have reviewed each portion of the record that according to appellant's counsel demonstrates the trial judge's bias. Contrary to counsel's statement that the trial judge's conduct conveyed to the jurors the impression that 'the trial judge did not think much of plaintiff's case nor the way her counsel was presenting it, while on the other hand, he highly respected defense counsel and was sympathetic to defendant' (Brief for Appellant at 27), we think that the judge was making an effort in good faith to clarify the testimony, and to correct counsel's inartful and, from an evidentiary perspective, frequently improper examination of witnesses. This was unquestionably within the judge's discretion. Slater v. Rimar, Inc., 462 Pa. 138, 146, 338 A.2d 584, 589 (1975) (trial judge's inherent power to control course of litigation); Fischer v. Commercial National Bank, supra at 202, 184 A. at 58--59 (trial judge's control over extent of cross-examination); Berry v. Heinel Motors, Inc. 162 Pa.Super. 52, 58, 56 A.2d 374, 377 (1948) (same). See also Mittleman v. Bartikowsky, 283 Pa. 485, 486, 129 A. 566, 567 (1925); Dougherty v. Waterman S.S. Corp., 265 F.2d 284, 288 (3d Cir. 1959). We agree with the trial judge's statement that a judge 'must be more than a mere umpire,' 62 Del.Co. at 82, and are of the opinion that the trial judge's conduct of this case was aimed at the enhancement, rather than the diminution, of the fairness of the trial.

II

Did the Trial Judge Err in Charging on the Doctrine of

Unavoidable Accident?

In his charge the trial judge said:

Now, members of the Jury, sometimes the happening of an accident is unavoidable and happens or occurs without a Defendant being negligent. On the other hand, a fact that an accident occurs does not of itself prove that there was negligence on anyone's part.

You must determine the true facts in light of the law as we have given it to you as respects the matter of negligence, to determine whether or not the defendant was negligent. If after doing so you conclude the Defendant was not negligent and that the accident was unavoidable, that is with the exercise of reasonable duty, of care required and defined for you, the Defendant did not cause nor could have avoided the happening of this accident, then no one can recover.

(N.T. 455)

Appellant is correct that no change on the doctrine of unavoidable accident should have been given if 'on no possible theory' could the accident have been unavoidable. Matthews v. Derencin, 360 Pa. 349, 352, 62 A.2d 6, 7--8 (1948). In Matthews, the trial judge charged that "(i)f this was purely an unavoidable accident, there can be no recovery in this case." Id. at 352, 62 A.2d at 7. The Supreme Court held the charge improper since 'the testimony firmly established that there must have been negligence' on the part of either or both of the defendants. Id. at 353, 62 A.2d at 8. In the present case, however, the evidence was not as unequivocal. The evidence of both parties showed that there was ice on the surface of Glendale Avenue, although there was divergent testimony concerning the location and extent of the ice. In addition, appellee testified that although his speed was only ten to fifteen miles per hour, he was unable to see the ice until he was practically on top of it, that he began to skid, and that there was nothing he could do to control his car. Therefore, the evidence warranted a charge on unavoidable accident.

III Did the Trial Judge Err in Charging on the Law Concerning Skidding?

--A--

In the course of his charge, the trial judge read certain relevant sections of The Vehicle Code. ⁴ Specifically, the jury was instructed on the statutorty duty to drive on the right side of the highway:

Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive the same upon the right half of the highway, and shall drive as closely as possible to the righthand edge or curb of such highway, unless it is impracticable to travel on such side of the highway.

(N.T. 459; 75 P.S. § 1004) ⁵

The judge then charged on the effect of a violation of this duty:

Your determination that a driver did violate a rule of the road will make him negligent, but it will not also make him liable for any injury or damage either to himself or to another, unless you also find that that violation did in fact proximately cause the injury or accident.

(N.T. 461)

These instructions, it will be observed, would have permitted the jury to find appellee negligent had it found that appellee's car crossed Glendale Ave. and struck appellant. The question presented by this case is whether the judge's charge on skidding undid the instructions by incorrectly exculpating appellee from the effect of a violation of 75 P.S. § 1004, thereby correspondingly increasing appellant's burden of proving negligence. We conclude that the charge on skidding did have this result, and we hold that the effect of a violation of 75 P.S. § 1004 should be stated in the manner set forth in a proposed Pennsylvania Standard Jury Instruction. ⁶ Since the error in the charge on skidding may have had a determinative effect on the outcome of the case, a new trial must be awarded. Noel v. Puckett, 427 Pa. 328,...