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KEELER v. BAIR (05/21/62)

May 21, 1962

KEELER
v.
BAIR, APPELLANT.



Appeal, No. 162, Jan. T., 1962, from order of Court of Common Pleas of Berks County, Sept. T., 1959, No. 99, in case of Mildred J. Keeler v. Harry N. Bair and Joyce M. Bair, his wife. Order affirmed.

COUNSEL

Frederick O. Brubaker, for appellants.

Raymond C. Schlegel, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 407 Pa. Page 336]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiff in this case, Mildred J. Keeler, brought an action of trespass against the defendants, Harry N. Bair and Joyce M. Bair, his wife, averring that on the night of April 26, 1959, in darkness and rain, while walking over the pavement in front of the property of the defendants, she fell and was injured. She alleged that her fall was due to the fact that a slab of concrete in the sidewalk tilted 5 inches above the general level of the pavement, causing a dangerous condition which, at night, was not visible. She asserted that this condition was known to the defendant.

The case came on for trial in the Court of Common Pleas of Berks County, and, after the taking of testimony, the summations of the attorneys, and the charge of the court, the jury returned a verdict which carried the following wording: "Negligence on both sides on account of no eyewitness to accident."

[ 407 Pa. Page 337]

The trial judge accepted the verdict but later declared it defective and ordered a new trial. The defendants have appealed, contending that the verdict was proper and that it indicated that the jury concluded the plaintiff had not proved that the defendant was responsible for the accident.

The defendants submit in addition that plaintiff's counsel did not ask the court to "modify the verdict," and argue that "To sit back and accept the verdict which the jury returned, make no application for the Court to return the jury and thereafter to seek a new trial can in no sense be interpreted as being in the interest of justice."

While trials are adversary proceedings, this does not mean that a palpable error cannot be corrected merely because one of the parties does not ask for the correction. Things can happen in a trial which themselves proclaim irregularity and therefore do not need official acknowledgment of their imperfection. If a witness is irresponsibly intoxicated or a juror becomes seriously ill, it does not matter whether one of the attorneys asks for withdrawal of the witness or calls attention to the disabled juror - the Judge himself sua sponte takes the action the situation obviously demands. When a verdict is clearly irresponsive to the issues involved the Judge may send the jury back for reconsideration or declare a mistrial, entirely independent of the attitude of the lawyers.

The verdict in this case was so patently insupportable in law that no silence on the part of plaintiff's counsel could work an acceptance of it, and no statement by defendants' counsel could cure its irremediable infirmities. The jury was clearly of the impression that the plaintiff could not recover because there were no eyewitnesses to the accident. To accept such a proposition in Court, ...


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