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THOMAS v. MILLS. (03/25/57)

March 25, 1957


Appeals, Nos. 3, 4 and 6, Jan. T., 1957, from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1954, No. 1365, in case of Mary Ross and Thomas, a minor by her guardian, Wilbur Ross and Louise Lona Ross, Administratrix of the estate of Eugene Thomas, in his own right, v. H. B. Mills et al. Judgments affirmed.


J. E. Gallagher, with him Irving L. Epstein, Carlon O'Malley, Edwin Utan, and Richard Conaboy, for appellants.

Harry P. O'Neill, Jr., with him Frank M. Walsh, and Walsh & O'Neill, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.

Author: Chidsey

[ 388 Pa. Page 354]


Plaintiffs and the additional defendant appeal in this trespass action from the refusal of the Court of Common Pleas to grant a new trial after a jury verdict was returned in favor of the original defendants and against the additional defendant.

The action arose out of a motor vehicle accident in which an automobile operated by the minor plaintiff's brother, Clarence Thomas, collided with the rear end of a coal truck owned by H. B. Mills and operated by Everett Finch. Suit was originally instituted by the father of the minor plaintiff as her guardian and in his own right against the owner and the operator of the truck. These original defendants then brought in the driver of the automobile, Clarence Thomas, as an additional defendant. Upon the father's death, a court-appointed guardian for the minor and the administratrix of the father's estate were substituted as plaintiffs.

The accident occurred about 3:15 in the afternoon of June 6, 1953, north of Scranton, Pennsylvania, on a four-lane, divided concrete highway, U.S. Route 11, which runs generally north and south, at a point where a "T" intersection is formed by a macadam road leading eastwardly called Brookside Road. It was a rainy afternoon and the road was wet. The right front of the Thomas automobile ran under the left rear of Mills' coal truck, which had stopped or was moving slowly in the right-hand lane preparatory to entering

[ 388 Pa. Page 355]

Brookside Road. The minor plaintiff, a little girl who was sitting in the front seat on the lap of one of her brothers, was very seriously injured and suffered permanent disfigurement.

The plaintiffs' contention was that the Mills' truck had suddenly and without warning stopped at the entrance of the intersection, thus causing the accident. The version of the original defendants, Mills and Finch, was that Finch, the driver of the truck, had set his right-turn signal several hundred feet from the intersection, that he then gradually slowed his speed to about ten miles per hour and was in the process of turning right onto Brookside Road from the right-hand lane when the truck was struck from the rear by the automobile driven by the additional defendant Clarence Thomas, and defendants contended that the accident was due to the additional defendant's negligence in following too closely at an excessive rate of speed, in failing to note the truck's signal and turn preparations, and in failing to pass the Mills' truck in the left passing lane open to him. There was evidence by disinterested witnesses that immediately after the accident, the truck's right-turn signal was on. Thomas, the driver of the automobile, testified that he had been following the truck for about two miles, and was travelling about 30 miles per hour; that when the truck stopped at the intersection, as he claimed it did, he was 100 feet away, that there were no other cars on the road, and nothing to obscure his vision.

The jury in finding for Mills and Finch, and against Clarence Thomas, apparently accepted the original defendants' version. There is no question that this finding is amply supported by the evidence, and appellants do not here contend that the finding was against the weight of the evidence. The appeal here is based solely on the charge to the jury, the contention

[ 388 Pa. Page 356]

    being that the trial judge had "dogmatically" expressed his opinion as to additional defendant's negligence, had emphasized the negligence of the additional defendant and had minimized the negligence of the original defendant Finch, and that the trial judge had erred in refusing to charge that Finch, the driver of the truck, was under an obligation to look to the rear before stopping or turning.

The trial of this case took place over a three-day period. Sixteen persons gave testimony. No errors at trial are alleged by appellants, and, indeed, our perusal of the record convinces us that the learned trial judge presided over the trial in complete fairness and propriety. The charge to the jury was a lengthy and complete one, covering some eighteen typewritten pages, and taking, we are told, the better part of two hours to deliver. About halfway through the charge, after instructions as to the function of the jury, the negligence concept, and the application of that concept to the operation of motor vehicles, the trial judge related the facts as to the additional defendant, Clarence Thomas. At one point therein, the court made the statement of which appellants principally complain: "Now, members of the jury, the conclusions as I have said before are for you, and I may not even interfere with them. I very seldom express an opinion in a case - that really isn't my job - but I cannot see under this evidence how you could come to any other reasonable conclusion but that Mr. Thomas was negligent on this occasion. Of course, it is for you to say, it is your responsibility, but how any reasonable person could come to any other conclusion I personally cannot see.". This statement, urge the appellants, "... was tantamount to removing from the jury's consideration the question of the negligence of the driver of the Thomas car, in which the minor plaintiff was a passenger,

[ 388 Pa. Page 357]

    thereby indirectly seeding in the jury's mind the initial doubt as to any negligence on the part of the driver of the lead vehicle, the truck of the defendants.". With this contention we disagree. We have frequently held that a trial judge may express his opinion on the facts in a case if he makes it abundantly clear that it is the jury's opinion and not his that must govern in the determination of the issues. At no fewer than a half dozen separate places in the charge the court below clearly emphasized that the conclusions as to negligence were for the jury as to all of the defendants. In summing up his charge, the trial judge again stated, "... All conclusions, members of the jury, of course, are for you, and these things that I am pointing out to you I am doing it because it is my duty so to do, and I am not indicating one way or the other what your decision should be. I have the utmost confidence and faith in your ability to render the right decision in this case.", and thereafter he laid out the alternative decisions to which the jury might come, as follows: "Now, members of the jury, there are three different situations. You may come to the conclusion that the Thomas boy who was driving this car was the person solely responsible for this accident. In other words, you may come to the conclusion that it was his negligence that caused this collision and not any negligence on the part of the truck driver. Well, in that event if you come to that conclusion your verdict would be for the plaintiffs against Clarence Thomas alone. You may come to the second situation, members of the jury, where you would conclude that the only one responsible for this accident was the truck driver. In other words, you might come to the conclusion that it was the negligence of the truck driver who caused this accident, and it was his negligence alone and not the negligence of Clarence Thomas. In

[ 388 Pa. Page 358]

    that event, members of the jury, your verdict would be for the plaintiffs against the truck driver and the truck owner. You would have to find against both because the employee's negligence binds the owner as well as himself. You might come to the third situation, members of the jury, where you would come to the conclusion that both drivers on this occasion were guilty of negligence; in other words, that the truck driver was negligent and that Clarence Thomas was negligent, and then your verdict would be for the plaintiffs against both defendants or all defendants since there would be three of them. It would be against the truck driver, the truck owner, and the driver of the Thomas car.".

Indicative of the jury's understanding that the issues of fact were for it alone to determine, is that the jury retired for about an hour and a half, then returned to the courtroom to ask some pertinent questions of the court, and thereafter retired for another five hours before returning its verdict.

In carefully reading the charge as a whole, as it must be read in order to determine its ultimate effect: Masinko et al. v. McLeary, 337 Pa. 355, 11 A.2d 648; Cain v. Kohlman, 344 Pa. 63, 22 A.2d 667; Robinson et al., Admrs. v. Philadelphia Transportation Co. et al., 347 Pa. 288, 32 A.2d 26; Bollinger, Admrx. v. West Penn Power Company, 365 Pa. 599, 76 A.2d 214; it is perfectly clear that the issues of fact were fully, fairly ...

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