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NEBEL v. MAUK ET AL. (05/09/69)

decided: May 9, 1969.

NEBEL
v.
MAUK ET AL., APPELLANTS



Appeals from order of Court of Common Pleas of Allegheny County, Oct. T., 1961, No. 3057, in case of Charles J. Nebel, amended to read Thelma M. Nebel, administratrix of estate of Charles J. Nebel, v. Lynn G. Mauk et al.

COUNSEL

Richard D. Klaber, with him Dickie, McCamey & Chilcote, for appellants.

Herbert Jacobson, with him Harold Gondelman, and Baskin, Boreman, Sachs, Gondelman & Craig, for appellant.

Robert Rade Stone, for appellee.

Bell, C. J., Jones, Cohen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Justice O'Brien would affirm the grant of a new trial. Mr. Justice Eagen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: Cohen

[ 434 Pa. Page 316]

This trespass action was undertaken to recover damages from the drivers and owners of two automobiles that struck plaintiff as he made a left turn onto a highway. The plaintiff, Nebel, entered the road after waiting for a break in the traffic. Nebel testified that he did not see the defendant Mauk driving in an automobile, owned by the City of Williamsport, because Mauk was then passing a truck. Mauk denies this maneuver or that any truck was there. The automobiles collided and plaintiff was thrown from his car to

[ 434 Pa. Page 317]

    the highway and/or low medial strip. Some time between 2 seconds and 2 minutes later, defendant Weiss struck plaintiff as he lay in the road.

The controversy centers around the existence of contributory negligence. The trial court charged that the doctrine of contributory negligence could not, as a matter of law, enter into the case against Weiss since the first incident had come to an end. The court relied on Brazel v. Buchanan, 404 Pa. 188, 171 A.2d 151 (1961). In that case, however, it was clear that five minutes had passed between the separate strikings. It was clear that the "forces which combined to produce an accident and injury (had) spent themselves, and quiescence, no matter of what duration, (had) set in." Brazel v. Buchanan, supra, at 192. When the Court, speaking through Justice Musmanno, added that the same would apply to a shorter interval, it was dictum and does not determine the issue of the number of seconds required for "quiescence" to be established. In the present case, since the testimony as to the time between impacts is in conflict and hence properly submitted to the jury, it was a jury question whether sufficient time had elapsed to relieve the plaintiff of contributory negligence, if any were found.

The jury, after long deliberation, asked the following question: "What is the law: If a person is even slightly negligent can he claim damages from another person?" The trial judge after conferring with counsel for all parties could not arrive at a proper charge and therefore answered: "The charge covered this point specifically and fully. Because of the complex aspects of this case, the court cannot charge the jury further. Follow the charge as given." The jury then returned a verdict in favor of both defendants. Plaintiff filed a motion for a new trial, alleging, inter alia, that it was error not to recharge the jury on contributory

[ 434 Pa. Page 318]

    negligence. The court en banc agreed and ordered a new trial. The ...


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