Nebel v. Mauk

• Decision Date: 09 May 1969
• Citation: 434 Pa. 315,253 A.2d 249
• Parties: Charles J. NEBEL, amended to read Thelma M. Nebel, Administratrix of the Estate of Charles J. Nebel, v. Lynn G. MAUK, Appellant, City of Williamsport, Pennsylvania, and Carl L.Weiss, Jr. Appeal of Carl L. WEISS, Jr. Appeal of CITY OF WILLIAMSPORT, Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 249

253 A.2d 249

434 Pa. 315

Charles J. NEBEL, amended to read Thelma M. Nebel Administratrix of the Estate of Charles J. Nebel, v. Lynn G. MAUK, Appellant, City of Williamsport, Pennsylvania and Carl L.Weiss, Jr Appeal of Carl L. WEISS, Jr Appeal of CITY OF WILLIAMSPORT, Pennsylvania.

Supreme Court of Pennsylvania.

May 9, 1969.

Herbert Jacobson, Jacobson & Gondelman, Harold Gondelman, Baskin, Boreman, Sachs, Gondelman & Craig, Pittsburgh, for appellant Carl L. Weiss, Jr.

Richard D. Klaber, Dickie, McCamey & Chilcote, Pittsburgh, for appellants City of Williamsport and Lynn G. Mauk.

Robert Rade Stone, Pittsburgh, for appellee.

Before BELL, C.J., and JONES, COHEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

COHEN, Justice.

This trespass action was undertaken to recover damages from the drivers and owners of two automobiles that struck plaintiff as he made a left turn onto a highway. The plaintiff, Nebel, entered the road after waiting for a break in the traffic. Nebel testified that he did not see the defendant Mauk driving in an automobile, owned by the City of Williamsport, because Mauk was then passing a truck. Mauk denies this maneuver or that any truck was there. The automobiles collided and plaintiff was thrown from his car to the highway and/or low medical strip. Sometime between 2 seconds and 2 minutes later, defendant Weiss struck plaintiff as he lay in the road.

The controversy centers around the existence of contributory negligence. The trial court charged that the doctrine contributory negligence could not, as a matter of law, enter into the case against Weiss since the first incident had come to an end. The court relied on Brazel v. Buchanan, 404 Pa. 188, 171 A.2d 151 (1961). In that case, however, it was clear that five minutes had passed between the separate strikings. It was clear that the 'forces which combined to produce an accident and injury (had) spent themselves, and, quiescence, no matter of what duration, (had) set in.' Brazel v. Buchanan, supra, at 192, 171 A.2d at 154. When the Court, speaking through Justice Musmanno, added that the same would apply to a shorter interval, it was dictum and does not determine the issue of the number of seconds required for 'quiescence' to be established. In the present case, since the testimony as to the time between impacts is in conflict and hence properly submitted to the jury, it was a jury question whether sufficient time had elapsed to relieve the plaintiff of contributory negligence, if any were found.

The jury, after long deliberation, asked the following question: 'What is the law: If a person is even slightly negligent can he claim damages from another person?' The trial judge after conferring with counsel for all parties could not arrive at a proper charge and therefore answered: 'The charge covered this point specifically and fully. Because of the complex aspects of this case, the court cannot charge the jury further. Follow the charge as given.' The jury then returned a verdict in favor of both defendants. Plaintiff filed a motion for a new trial, alleging, inter alia, that it was error not to recharge the jury on contributory negligence. The court en banc agreed and ordered a new trial. The defendants appealed to this Court.

In ordering a new trial, the lower court quoted Worthington v. Oberhuber, 419 Pa. 561, 215 A.2d 621 (1966):

'There may be situations in which a trial judge may decline to answer questions put by the jury, but where a jury returns on its own motion indicating confusion, the court has the duty to give such additional instructions on the law as the court may think necessary to clarify the jury's doubt or confusion.'

While the fact that the question was asked would indicate that some confusion existed, a new trial should not be ordered unless it can be shown that the confusion worked to the detriment of the losing party. The question could have been answered properly and simply 'no', but it is evident from the colloquy in chambers that the attorneys had accepted the law of contributory negligence as charged and that the trial judge was not asked to nor did she intend to alter her basic instructions. The law, as given to the jury, was unduly favorable to the plaintiff and if the jury found for the defendants in spite of that charge or somehow struck upon the correct law, the plaintiff had not been prejudiced. In order to obtain a new trial the moving party must demonstrate in what way the trial error caused an incorrect result. The plaintiff cannot meet this burden in this case. The trial judge determined that it was unnecessary to give further instructions. This decision came after a conference with counsel for all parties in which the impact of that decision was fully recognized and discussed. To retreat from this position and order a new trial was an abuse of discretion in which the court en banc should not have indulged.

Order reversed with instructions to enter judgment on the...