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LOBALZO v. VAROLI (06/24/66)

decided: June 24, 1966.

LOBALZO, APPELLANT,
v.
VAROLI



Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1956, No. 3119, in case of Joseph Lobalzo v. August Varoli and Raymond F. Varoli.

COUNSEL

Charles F. Dean, for appellant.

David J. Armstrong, with him Dickie, McCamey & Chilcote, for appellees.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Eagen concurs in the result. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Musmanno.

Author: Cohen

[ 422 Pa. Page 6]

This action arises out of a motor vehicle collision. At the conclusion of the court's charge, the trial judge granted both counsel a general exception and requested points of correction. No portion of the charge urged as error here was specifically excepted to. The jury returned a verdict for the defendant, and plaintiff sought a new trial, alleging error in the charge. His motion was denied by the court en banc. From judgment entered on that order he took this appeal.

Plaintiff argues that the charge was erroneous in three respects. He asserts that the charge: (1) failed to define contributory negligence, (2) inadequately defined proximate cause, and (3) misled the jury by causing them to believe that plaintiff was contributorily negligent merely because he crossed the center line of the road to his proper lane.

The law is clear that on an appeal from the grant or refusal of a new trial the order of the lower court will not be reversed where only a general exception was taken unless the errors committed were basic and fundamental and could not have been corrected at the trial. Ason v. Leonhart, 402 Pa. 312, 165 A.2d 625 (1960); Hill v. Gerheim, 419 Pa. 349, 214 A.2d 240 (1965).

This rule is founded on the principle that counsel shall not sit idly by, take his chances with instructions

[ 422 Pa. Page 7]

    given at trial, and then, having lost the case, seek a new trial and a second opportunity, on the ground that the charge was prejudicial to his client. If the rule should ever be relaxed, it is not here, for the legal issues involved are singularly uncomplex. Counsel who ought to be fully aware of the law involved in this case can have no excuse for failing to request a special exception if he thought the judge had erred. To remand in such cases as this would not only be sanctioning the failure of counsel to take special exceptions, but also would lead to further burdening of our trial courts.

The court en banc found no such error as would warrant the grant of a new trial. On a review of the record and in the light of the ...


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