Nebel v. MAUK , 434 Pa. 315 ( 1969 )

Dissenting Opinion by

Mr. Justice Roberts:

I would affirm the action of the court below granting appellants’ motion for a new trial, and thus I dissent.

I believe that the trial court properly refused to submit the issue of contributory negligence to the jury as to the appellant Weiss, who was driving the second car which struck appellee. Once appellee is lying helpless on the road, he is incapable of being guilty of contributory negligence, and this circumstance could not provide a defense to any parties who subsequently run over him. Cf. Brazel v. Buchanan, 404 Pa. 188, 171 A. 2d 151 (1961). Although appellee’s contributory negligence may have caused him to be struck by the first vehicle, it did not in the same sense cause him to be struck by the second. Appellee was doing nothing more than being helpless when he was struck by the Weiss car. Under these circumstances, I do not think it is relevant exactly how appellee came to be helpless. See Brazel v. Buchanan, supra.

As to the argument that it is unfair for Weiss to not be able to utilize a contributory negligence defense, while allowing him to so defend if he had struck appellee in mid-air, I think that it is necessary to first make clear that the second case is not before us, and I do not believe that the latter result should be assumed. Even assuming arguendo that contributory negligence would be available to Weiss if he had hit appellee in mid-air, I find the argued incongruity of that result and the one I would opt for here certainly to be no worse than that which would follow if appellee can recover from Weiss if he was lying on the road for twenty seconds, but not for two.

Since I believe that the trial court submitted the proper issues in this case to the jury, but failed to adequately dispel the jurors’ confusion as to how to decide those issues, I would hold that it was in the discretion of the court en banc to grant a new trial. The trial court originally held that because of the complex aspects of this ease, the court cannot charge the jury further.” But the complex aspects of the case are exactly what created the need for further jury instruction, and the court en banc apparently so recognized. Here the jurors’ confusion went to an issue that was central to the litigation; the jury could not properly decide this case without a complete understanding of the relevant doctrines of contributory fault. When the jury believes that it is necessary to return to the courtroom in order to get additional instruction designed to dissipate its confusion, the trial court is duty bound to give that instruction. Worthington v. Oberhuber, 419 Pa. 561, 215 A. 2d 621 (1966).

I find the majority’s statement that it is evident from the “colloquy in chambers that the attorneys had accepted the law of contributory negligence as charged” to be almost incomprehensible. The court en banc specifically noted that “because of the deep antagonism between counsel for the plaintiff and counsel for defendant Weiss all through the trial, it was impossible to get any agreement as to the scope of the recharge.” (Emphasis added) It is clear to me that the jury’s confusion as to the doctrine of contributory fault could well have contributed to its verdicts in favor of the appellants, and thus the granting of a new trial because of the refusal of the trial court to further instruct the jury was within the discretion of the court en banc.