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OMEK v. PITTSBURGH (11/14/56)

November 14, 1956

OMEK
v.
PITTSBURGH, APPELLANT



Appeals, Nos. 193 and 194, March T., 1956, from judgments of Colurt of Common Pleas of Allegheny County, Oct. T., 1952, No. 1400, in case of John Omek, Jr. et ux. v. City of Pittsburgh. Judgments affirmed. Trespass for personal injuries and property damage. Before O'BRIEN, J. Verdicts, for plaintiff J. Omek in the sum of $10,000, and for L. Omek in the sum of $2500, and judgments entered thereon. Defendant appealed.

COUNSEL

Thomas E. Barton, Assistant City Solicitor, with him J. Frank MeKenna, Jr., City Solicitor, for appellant.

Earl J. Cavanaugh, with him Evans, Ivory & Evans, for appellees.

Before Stern, C. J., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 387 Pa. Page 130]

OPINION BY MR. JUSTICE JONES

The plaintiffs, John Omek, Jr., and his wife, sued the City of Pittsburgh for damages for injuries received by them when a City fire truck struck and completely overturned Omek's small pickup truck in which he, his wife and two children were riding. Omek also claimed for the damage to his truck. The jury returned a verdict of $10,000 for the plaintiff husband and $2,500 for his wife. The defendant's motion for a new trial was denied, and judgments were entered on the verdicts. The City has appealed.

It is unnecessary to detail the circumstances leading up to and attending the collision which occurred at 6 P.M. on a clear day in July at the intersection of a through highway, which Omek was traversing, and a side street on which the fire truck had been traveling.

[ 387 Pa. Page 131]

The question involved is one of law which the appellant poses on what it terms a basic and fundamental error in the trial court's charge. It is essential to a review that it be such, for the defendant took but a general exception to the charge. It is the appellant's contention that the trial judge's instructions misled the jury into believing that all that was necessary in order to impose liability for the accident on the City was for the plaintiffs to prove that the operator of the fire truck was guilty of ordinary negligence which was the proximate cause of the plaintiffs' injuries. The pertinent law is plain.

Fire department or fire patrol vehicles, when traveling in response to a fire alarm, are "exempt from The Vehicle Code of May 1, 1929, P.L. 905, as amended by the Act of June 5, 1937, P.L. 1718, regarding speed ( § 1002(f) 75 PS 501), traffic signals ( § 1026(d) 75 PS 635), entries upon through highways and stop intersections ( § 1016(d) 75 PS 591); and, when operated upon official business with audible signal, the exemption applies to the right of way rule ( § 1014 (b) 75 PS 573). These exemptions are conditional upon the vehicle being operated 'with due regard for the safety of all persons using the highway'; they do not protect the operator 'from the consequences of a reckless disregard of the safety of others,' or 'from the consequence of an arbitrary exercise of [the] right of way'": see LaMarra v. Adam, 164 Pa. Superior Ct. 268, 276, 63 A.2d 497; also Varano v. The Township of Coal, 23 Northumberland Legal Journal 236, 243. The above specified exemptions also inure to an ambulance "when traveling in emergencies."

The gravamen of the appellant's complaint is that the learned trial judge, in his charge to the jury, used the words ...


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