Smith v. Chardak

CourtSuperior Court of Pennsylvania
Writing for the CourtPOPOVICH
Citation435 A.2d 624,291 Pa.Super. 173
PartiesMargaret SMITH, Appellant, v. Burton CHARDAK and Sherre Chardak.
Decision Date02 October 1981

Page 624

435 A.2d 624
291 Pa.Super. 173
Margaret SMITH, Appellant,
v.
Burton CHARDAK and Sherre Chardak.
Superior Court of Pennsylvania.
Argued Jan. 20, 1981.
Filed Oct. 2, 1981.

Page 625

[291 Pa.Super. 175] Michael G. Trachtman, Norristown, for appellant.

Gilbert P. High, Jr., Norristown, for appellees.

Before HESTER, DiSALLE and POPOVICH, JJ.

POPOVICH, Judge:

This action of trespass arises out of injuries suffered by Margaret Smith, appellant, when struck by the vehicle driven by Sherre Chardak, appellee. The jury returned a verdict for the appellee. 1 Appellant's motion for a new trial was denied and she filed this appeal arguing solely that the court's charge to the jury was in error. We agree and order a new trial.

Where the accuracy of a charge is in issue, an appellate court must look to the charge in its entirety against the background of evidence in order to determine whether or not error was committed and whether that error was prejudicial to the complaining party. Slavish v. Ratajczak, 277 Pa.Super. 272, 419 A.2d 767 (1980).

The evidence indicates that around 8:00 p. m. on the 3rd of September, 1974, appellant had just left her place of employment in the Cedarbrook Mall, located in Philadelphia, Pennsylvania. The appellant was walking south toward the intersection of Cheltenham and Mt. Airy Avenues. The intersection is controlled by traffic lights, and there are two lanes of travel and left-

Page 626

hand turn lanes on Cheltenham leading into the Mall, which are divided by a medial strip. Appellant had traversed part of the roadway to the medial strip and was intent on crossing Cheltenham to reach a bus [291 Pa.Super. 176] stop. At this same time, appellee was driving her MG east on Cheltenham, in the company of two friends James Dominic was seated in the front and William Sturchio was in the back. Because it was raining heavily, the appellee had her headlights and windshield wipers on and was moving between 15 and 25 miles per hour. Around 100 feet from the intersection, appellee observed that the light governing her lane was green.

At trial, the witnesses gave varied accounts of when they noticed the appellant. The appellee's version placed the victim approximately five feet in front of her vehicle, at a point about two feet right of the medial strip, before she came into her line of vision. On cross-examination, however, appellee revised her estimation to "three car lengths, or forty-five feet." (RR 192a) The appellee also noted that the appellant was carrying an open umbrella, which was aimed in the direction of on-coming traffic.

Next, James Dominic, who was called by the appellant, remarked that he initially observed the victim "approximately one hundred feet from the intersection," and she was "standing on the medial strip." (RR 55a-56a) The second time was "(a)bout thirty feet ... to fifty feet" from the intersection, id., and she was "(s)tepping off the curb." (RR 57a) Given such statements, counsel for appellant produced a transcript of a deposition taken on August 12, 1976, in which the witness stated that he first saw the victim 35 feet, and not 100 feet, prior to impact; and that "she was walking" instead of standing on the medial strip. (RR 66a) The witness conceded the inconsistency and admitted that his recollection was better two years after the accident than at trial. (RR 69a) The witness went on to corroborate the appellee's accounting of the appellant holding an umbrella "to her side, facing ... traffic(,)" (RR 58a), although he did not remember the color of the traffic signal.

Lastly, when William Sturchio took the stand, he related that upon approaching the intersection, the light was green and that his recollection of the appellant was that she was standing to the left, and he saw her with the medial strip [291 Pa.Super. 177] behind her. "Whether she was on the medial strip or not, or in the road already, it (was) difficult to exactly say, but (he) looking at her, related her to the medial strip. In other words, the medial strip (was) behind her." (RR 136a) Upon questioning by the trial judge, Sturchio did give the figure of forty-two feet, (RR 139a), as the distance at which he first sighted the victim. Additionally, the witness stated that the victim was in possession of an umbrella.

As a direct result of the accident, the appellant could recall no more than walking up the pedestrian walkway running along side Cheltenham Avenue, and then "waking up in the emergency room of the Chestnut Hill Hospital." (RR 78a) However, she did deny using or even owning an umbrella.

Appellant's theory of recovery was premised upon appellee's negligence, or, alternatively, if there was evidence of contributory negligence, 2 relief was warranted under the "Discovered Peril Doctrine." In accordance with appellant's position, the trial court read the following points, submitted by the appellant, to the jury:

Point Number Twenty-nine is affirmed and reads as follows:

Even if you find that the plaintiff was contributorily negligent, this contributory negligence will not bar the plaintiff's right to recover unless the contributory negligence is shown to be a proximate cause of the plaintiff's injuries.

That is true.

Page 627

Point Number Thirty-one is affirmed and reads as follows:

Pennsylvania has a rule which is called the Discovered Peril Doctrine.

[291 Pa.Super. 178] Members of the Jury, I'm affirming this point for Charge, though I must say I think it's only tangentially involved in this case, but I'll read it nevertheless. This rule may be applicable in determining whether the plaintiff's contributory negligence, if any, was a proximate cause of her injuries. If it is not, contributory negligence will not bar a recovery by plaintiff. The rule may be expressed generally as follows:

Where defendant should be aware of the existence of a potential danger to the plaintiff, caused by the plaintiff's negligence, at such a time that defendant could avoid harming the plaintiff by acting carefully, and thereafter instead of avoiding injury to the plaintiff, the defendant negligently brings about the accident, the plaintiff is relieved of all liability for contributory negligence. This is because the plaintiff's contributory negligence would not be a proximate cause of the plaintiff's injuries.

The defendant's negligence, after the defendant should have been able to avoid injuring the plaintiff, is the sole cause of the plaintiff's injuries.

Point Thirty-three is affirmed and reads as follows:

A plaintiff may recover damages for an injury caused by the defendant's negligence, not withstanding the plaintiff's own negligence in exposing himself to the risk of injury, if the injury was more immediately caused by the defendant's ommission (sic), after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to the plaintiff.

Well, that's the same principle of law recited in another fashion.

Point Number Thirty-four is affirmed and reads as follows:

A plaintiff may recover not withstanding (sic) his own negligence, if the defendant failed to exercise due care to avoid inflicting the injury after the defendant knew or [291 Pa.Super. 179] should have known that the plaintiff was in a position of peril. " 3 (RR 253a-256a)

After the instructions were completed, the jury retired for deliberations at 2:15 p. m. The trial judge, at 4:20 p. m., received a communique from the jurors and they were reconvened in open court. The jury requested, and was reread, the points for charge, a portion of which appears supra, concerning the question of liability. 4 (RR 275a-277a) Thereafter, at 4:37 p. m., the jury recommenced deliberations. However, at 8:20 p. m., the court received a second note which read: "If both parties are negligent, must we decide in favor of the (appellee)? Thank you. (Forewoman)." 5 The trial judge called the parties

Page 628

and the jurors into [291 Pa.Super. 180] court and responded: "The answer is yes. If you find both parties negligent, your verdict must be for the (appellee)." (Emphasis added) (RR 281a) The jury was escorted out of the courtroom, 6 and within nine (9) minutes returned with a verdict in favor of the appellee.

[291 Pa.Super. 181] From the court's answer the jury doubtless understood that if the appellant was held to be guilty of contributory negligence, despite a finding that appellee was equally guilty of...

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19 practice notes
  • Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc.
    • United States
    • Superior Court of Pennsylvania
    • May 25, 1984
    ...may as readily have followed the incorrect as the correct one, and it is impossible to know which they accepted.' " Smith v. Chardak, 291 Pa.Super. 173, 182, 435 A.2d 624, 629 (1981), [326 Pa.Super. 523] quoting Pedretti v. Pittsburgh Railways Co., 417 Pa. 581, 586, 209 A.2d 289, 292 (1965)......
  • Brogley v. Chambersburg Engineering Co.
    • United States
    • Superior Court of Pennsylvania
    • November 5, 1982
    ...Bulifant, 438 Pa. 265, 270, 265 A.2d 627, 630 (1970); Whitner v. Lojeski, 437 Pa. 448, 454, 263 A.2d 889, 892 (1970); Smith v. Chardak, 291 Pa.Super. 173, 175, 435 A.2d 624, 625 (1981); Slavish v. Ratajczak, 277 Pa.Super. 272, 274, 419 A.2d 767, 768 (1980); Albert v. Alter, 252 Pa.Super. 20......
  • Spearing v. Starcher, No. 1294
    • United States
    • Superior Court of Pennsylvania
    • October 5, 1987
    ...careful driver should have acted under the circumstances. The court's response was inadequate and misleading. Cf. Smith v. Chardak, 291 Pa.Super. 173, 435 A.2d 624 (1981); Reilly Page 41 v. Poach, 227 Pa.Super. 522, 323 A.2d 50 (1974). The trial court's refusal to instruct the jury fully on......
  • Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc.
    • United States
    • Superior Court of Pennsylvania
    • March 23, 1984
    ...may as readily have followed the incorrect as the correct one, and it is impossible to know which they accepted.' " Smith v. Chardak, 291 Pa.Super. 173, 182, 435 A.2d 624, 629 (1981), [326 Pa.Super. 523] quoting Pedretti v. Pittsburgh Railways Co., 417 Pa. 581, 586, 209 A.2d 289, 292 (1965)......
  • Request a trial to view additional results
19 cases
  • Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc.
    • United States
    • Superior Court of Pennsylvania
    • May 25, 1984
    ...may as readily have followed the incorrect as the correct one, and it is impossible to know which they accepted.' " Smith v. Chardak, 291 Pa.Super. 173, 182, 435 A.2d 624, 629 (1981), [326 Pa.Super. 523] quoting Pedretti v. Pittsburgh Railways Co., 417 Pa. 581, 586, 209 A.2d 289, 292 (1965)......
  • Brogley v. Chambersburg Engineering Co.
    • United States
    • Superior Court of Pennsylvania
    • November 5, 1982
    ...Bulifant, 438 Pa. 265, 270, 265 A.2d 627, 630 (1970); Whitner v. Lojeski, 437 Pa. 448, 454, 263 A.2d 889, 892 (1970); Smith v. Chardak, 291 Pa.Super. 173, 175, 435 A.2d 624, 625 (1981); Slavish v. Ratajczak, 277 Pa.Super. 272, 274, 419 A.2d 767, 768 (1980); Albert v. Alter, 252 Pa.Super. 20......
  • Spearing v. Starcher, No. 1294
    • United States
    • Superior Court of Pennsylvania
    • October 5, 1987
    ...careful driver should have acted under the circumstances. The court's response was inadequate and misleading. Cf. Smith v. Chardak, 291 Pa.Super. 173, 435 A.2d 624 (1981); Reilly Page 41 v. Poach, 227 Pa.Super. 522, 323 A.2d 50 (1974). The trial court's refusal to instruct the jury fully on......
  • Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc.
    • United States
    • Superior Court of Pennsylvania
    • March 23, 1984
    ...may as readily have followed the incorrect as the correct one, and it is impossible to know which they accepted.' " Smith v. Chardak, 291 Pa.Super. 173, 182, 435 A.2d 624, 629 (1981), [326 Pa.Super. 523] quoting Pedretti v. Pittsburgh Railways Co., 417 Pa. 581, 586, 209 A.2d 289, 292 (1965)......
  • Request a trial to view additional results

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