Farelli v. Marko ( 1985 )

HESTER, Judge,

dissenting:

I respectfully dissent. My review of the record and consideration of the applicable case law compels my agreement with appellant, Thomas Farrelli, that the trial court erred in denying his motion for a new trial.

Thomas and Marybelle Farrelli were traveling south on Route 51, a four-lane highway, at about 6:30 P.M. on June 18, 1979. Appellee, Brian Marko, and a passenger were traveling north on Route 51 at the same time. It is undisputed that appellee’s automobile “shot like a slingshot” across the two northbound lanes of traffic and across the center line, striking the Farrellis in their southbound lane.

Brian Marko explained his presence in the Farrellis’ lane as follows. He testified that he was driving in the extreme right lane of Route 51. He observed an automobile in his rearview mirror, also heading north in the far right lane, traveling “fast.” As the automobile proceeded to move into the left northbound lane to pass him, Marko feared the overtaking automobile would strike him. He therefore drove onto the berm on the right. He attempted to return to the highway, but his automobile did not respond to the turn of the steering wheel. Seeing a telephone pole in his path, Marko “jerked the [steering] wheel a lot harder and when both wheels came up on the road ... shot like a slingshot across the lanes____” The Farrellis sustained substantial injuries.

As noted by the majority, trial by jury culminated in a verdict in favor of Appellee Marko on December 10, 1982. The trial judge denied appellant’s motion for a new trial and this appeal followed.

The cumulative effect of two aspects of this case convinces me that a new trial is required. First, as noted by the majority, the trial judge determined that the sudden emergency rule was inapplicable to the facts of this case, and accordingly denied appellee’s points for charge based on this rule. However, the judge supported her denial of Mr. Farrelli’s motion for a new trial with the very doctrine she had previously ruled could not be supported by the facts. The relevant portion of the court’s opinion states, “[Wjhere the defendant is confronted with a sudden emergency which was in no way due to his own misconduct, such evidence will support a defense verdict.” Appellant does not argue that the trial court’s refusal to instruct the jury on the sudden emergency doctrine is irreconcilable with a defense verdict, as the majority states, but rather asserts that since the facts of this case preclude the applicability of the sudden emergency rule,¹ it was an error of law for the trial court to base its denial of appellant’s motion for a new trial on that doctrine.² I agree.

However, that aspect of this case, though not insignificant, is not the crucial issue to be resolved. The majority states that assuming the court’s reference to a sudden emergency was intentional and erroneous, the verdict may stand if the facts support it. It is my view that the facts do not.

I am convinced that the jury’s verdict in this case is against the weight of the evidence. In Pennsylvania, a driver who crosses the center line of a roadway thereby causing a collision is negligent per se. Bohner v. Stine, 316 Pa.Super. 475, 463 A.2d 438 (1983). See also 75 Pa.C.S. § 3301 (“Upon all roadways of sufficent width, a vehicle shall be driven upon the right half of the roadway____”). The burden then shifts to the driver to “prove by the fair weight of the credible evidence that his vehicle was there through no negligence on his part.” Kenworthy v. Burghart, 241 Pa.Super. 267, 361 A.2d 335 (1976). The only evidence offered by appellee, in an attempt to meet his burden of proof, was that he feared an overtaking automobile would strike him.³ He therefore drove onto the berm and “jerked” the steering wheel to the left in an attempt to reenter the highway before striking a telephone pole.

Denman v. Rhodes, 206 Pa.Super. 457, 214 A.2d 274 (1965), supports the grant of a new trial in this case, and the majority’s reference to it does not adequately distinguish its applicability. In Denman a collision occurred on the appellants’ proper side of the highway. The only evidence offered by the defendant/appellee was that the vehicle preceding the Denman automobile failed to dim its lights thereby causing the appellee to pull onto the berm of the road where he fell into a rut. When he tried to reenter the highway, he jerked the steering wheel and the automobile began to slide sideways. This court held that the weight of the evidence warranted a verdict for the plaintiffs/appellants, reversed and granted a new trial.

Appellee attempts to distinguish Denman by suggesting the defendant therein had a safe alternative course of action: stopping his vehicle and waiting until he could safely reenter the highway. This court could also engage in such imaginative speculation and suggest that Brian Marko, too, could have stopped his vehicle and waited to reenter the highway safely. Further, as noted supra, the parties herein were traveling on a four-lane highway. The phantom automobile, which Mr. Marko asserts prompted his hasty maneuvering onto the berm of the highway was, by appellee’s own testimony, following the rules of the road.

[By appellee]

I looked ahead of me to see where I was going ... and I looked in the rear view mirror again and the car was a lot closer____ He was just making his pass into the left hand lane, and I believed that he would have hit me in the back if I did not move over.

(R.58a). The above testimony merely establishes that when the overtaking automobile neared a slower moving vehicle, it properly moved into the left northbound lane to pass. Although Marko described the automobile as “coming fast,” there was no testimony concerning its speed or the lawful speed limit on Rte. 51.

The majority also erroneously dismisses the applicability of Bohner v. Stine, supra, to the instant case. In Bohner this court determined that the evidence offered by the appellee was insufficient to sustain a finding of no negligence. In that case, the defendant/appellee, explaining why his automobile crossed the center line and collided with the vehicle properly there, stated that the automobile in front of him suddenly slowed to make a turn and there were wet leaves on the road’s surface which caused his vehicle to skid.

Appellee attempts to distinguish Bohner by claiming that the appellee therein was not confronted with an emergency, as was Mr. Marko in the instant case. This reasoning is faulty in two respects. First, the trial court held that a sudden emergency defense was not applicable to the facts of this case. Therefore, reliance upon that doctrine in support of the verdict is precluded. Second, it is certainly within the scope of experience that berms along highways do not offer the same surface conditions as roadways, and are frequently peppered with obstacles, much as it is within the scope of driving experience that sudden stopping on wet leaves might precipitate skidding and a loss of control. I disagree that Bohner is significantly distinguishable from the instant case so as to preclude its applicability.

The majority suggests that since the Marko vehicle drove onto the berm to avoid an overtaking automobile, as opposed to one traveling ahead, Bohner is not applicable. However, Brian Marko testified that the act which led to his automobile “[shooting] like a slingshot” across the center line was his jerking of the steering wheel to avoid a telephone pole, a telephone pole which appeared in the path ahead. Also significantly, much like the defendant in Bohner, Marko testified to subsequently jerking the steering wheel much harder than he did initially. I disagree that the applicability of Bohner to the facts of this case can be dismissed with this faulty reasoning by the majority.

I am firmly convinced, in light of Bohner v. Stine, supra, and Denman v. Rhodes, supra, that the verdict is against the weight of the evidence in this case. I call attention to appellee’s testimony, surprisingly not underscored by appellant, that when Mr. Marko drove onto the berm he actually increased the speed of his vehicle.

Q Now, at the time you began moving over to the right side of your lane to permit that vehicle to pass did you have any estimate as to the speed of your vehicle?

A Thirty miles per hour.

Q What about the speed of your vehicle throughout the episode? In other words, from the point that your right front steering [sic] wheel went into the berm, and thereafter. Can you tell the Jury anything about the speed of your car? In other words, did it decrease, increase—

A There was an increase, I believe.

Q You mean your car speeded up?

A Yes, I believe just a little bit.

(R' 59a-60a).

When reviewing a weight of the evidence question, we must consider all of the evidence presented. Bohner v. Stine, supra. Although an order refusing to grant a new trial is within the discretion of the trial court, that discretion is not absolute. Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981), citing Decker v. Kulesza, 369 Pa. 259, 85 A.2d 413 (1952). “[T]he trial judge may not hide behind the jury’s verdict; he has a duty to grant a new trial when ... the judicial process has resulted in the working of an injustice upon any of the parties.” Denman v. Rhodes, supra, 206 Pa.Superior Ct. at 459, 214 A.2d at 275, quoting, Kiser v. Schlosser, 389 Pa. 131, 132 A.2d 344 (1957). “[A] new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985) (citation omitted). Indeed, in such a case the court has the duty to grant a new trial. Denman v. Rhodes, supra.

My review of the evidence, in light of the pertinent law, compels the conclusion that the jury’s verdict was against the weight of the evidence in this case.

I would reverse the judgment and grant a new trial.

1 . The propriety of the trial judge’s determination that the sudden emergency rule is inapplicable in this case is not before us in this appeal.

2 . Appellee’s suggestion that the trial court’s choice of language was an inconsequential faux pas fails to adequately recognize the plain meaning of the language of the opinion. The trial court’s use of the phrase "sudden emergency,” in the context of the opinion, was obviously not inadvertent and cannot be so characterized.

3 . As in Bohner v. Stine, supra, the other driver was not located in order to corroborate appellee’s testimony. Further, appellee failed to call as a witness the passenger in his automobile at the time of the collision.