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ROCKEY v. ERNEST (05/21/51)

May 21, 1951

ROCKEY, APPELLANT,
v.
ERNEST



Appeal, No. 76, Jan. T., 1951, from judgment of Court of Common Pleas of Centre County, Feb. T., 1948, No. 101, in case of Anna M. Rockey, Admrx., Estate of John B. Rockey, etc. v. William Ernest, et al. Judgment affirmed.

COUNSEL

William W. Litke, with him Fleming & Litke, for appellant.

Carl Rice, with him Musser W. Gettig, for appellees.

Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 367 Pa. Page 539]

OPINION BY MR. JUSTICE BELL

The narrow question involved in this case is whether the charge of the court was inadequate, and if so, did it amount to basic and fundamental error.

Anna M. Rockey, administratrix of the estate of John B. Rockey, brought a suit in trespass to recover damages for the death of her husband. The defendants are William Ernest, who was the operator of the bulldozer, and the Susquehanna Paving Materials Co., which was Ernest's general employer.Defendant company was the owner of the bulldozer in question. It alleged it had rented the machine to the Pennsylvania State College and that at the time of the plaintiff's accident on June 9, 1947, Ernest was the servant or employee or agent of the College and under its control and direction and consequently the company was not liable for Ernest's actions.

Plaintiff's decedent at the time of the accident was laying a pipe in a ditch which was twenty to twenty-five feet away from the bulldozer. The bulldozer, a dual wheeled, rubber tired vehicle, would be driven along the ground and then would stop and the bucket (on the machine) would be lowered, filled with dirt, and then the earth would be dumped into the ditch. Ernest was operating the bulldozer in the usual and normal manner when he ran over a stone as big as a man's fist. The stone snapped from under the wheel and flew sideways a distance of twenty or twenty-five feet and hit Rockey in the head. Rockey was obviously badly hurt and died two days later. Ernest did not know at the time of the accident that a stone had been hurled or the cause of Rockey's injury.

[ 367 Pa. Page 540]

The court gave a full and comprehensive charge to the jury. This necessitated charging on the subject of negligence and the sole, joint or several liabilities of defendants, which in turn involved a question of whether Ernest was the servant, employee or agent of the Susquehanna Paving Materials Co. At the conclusion of the charge of the court the trial judge asked counsel whether there was anything further, to which counsel for appellant replied "nothing further"; and then took merely a general exception to the court's charge. The jury returned a verdict for the defendants; plaintiff took this appeal from the order dismissing her motion for a new trial.

Appellant does not contend that any specific part of the court's charge was erroneous, but merely that the court failed to instruct the jury adequately with respect to the question of negligence on the part of the individual defendant and with respect to the question of the agency, employment and control of the individual defendant by his general employer.

It is well settled that under a general exception to a charge only errors which are basic and fundamental will be considered -- any other errors must be made the subject of a specific objection: McDonald v. Ferrebee, 366 Pa. 543, 547, 79 A.2d 232; Medvidovich v. Schultz, 309 Pa. 450, 164 A. 338; Pennsylvania Railroad Company v. Pittsburgh, 335 Pa. 449, 6 A.2d 907. "The general rule is that failure to except particularly to the trial judge's omission to give further instructions on any branch of the case precludes raising the question subsequently upon a general exception: Dravo Contracting Company v. James Rees & Sons, 291 Pa. 387, 393; ...


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