Appeal from judgment of Court of Common Pleas of Washington County, Nov. T., 1965, No. 138, in case of Nell G. Herron, administratrix of estate of Clifford M. Herron, deceased, v. Reu P. Silbaugh et al.
Robert L. Ceisler, with him Patrono, Ceisler and Edwards, for appellant.
Lawrence R. Zewe, with him Martin, Zewe & Fergus, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.
Nell G. Herron (plaintiff), as Administratrix of the Estate of her deceased husband, Clifford M. Herron, instituted a trespass action in the Court of Common Pleas of Washington County to recover damages arising out of a collision between a motor vehicle operated by Clifford M. Herron and an unmarked police car operated by defendant, Reu P. Silbaugh, a state police officer. In that action Silbaugh was named defendant, and Silbaugh brought into the action as an additional defendant, W. Franklin Harkey. After trial by a jury, a verdict in the amount of $25,000 was returned in plaintiff's favor against Silbaugh and Harkey was absolved of liability. The court denied Silbaugh's motions for judgment n.o.v. and a new trial, subject to a remittitur of $5,000.*fn1 Silbaugh now appeals from the judgment, as remitted, which was entered on the verdict.
The accident occurred on December 24, 1964, at about 4:00 p.m. Officer Silbaugh was operating a radar unit on Route 19, a four-lane, divided highway with a fifty-mile per hour speed limit. At approximately 4:00 p.m., a light-colored Dodge,*fn2 traveling at normal speed in the right-hand, northbound lane, passed Silbaugh's position. Moments later, Silbaugh observed a dark blue Dodge pass by at seventy miles per hour. Silbaugh immediately gave chase, pulling into the left-hand, northbound lane and accelerating to eighty miles per hour. Silbaugh's unmarked police car was not equipped with a red flashing "bubble light," but its headlights and four-way flashers were in operation. The car had a standard police siren which Silbaugh did not use.
As Silbaugh approached the aforementioned lightcolored Dodge, the Dodge veered slightly to its left -- towards the lane in which Silbaugh was driving. Silbaugh reacted by applying his brakes hard, as the consequence of which he lost control, straddled the divider, which was eight to ten inches high, and then skidded sideways in a northerly direction into the southbound lanes -- colliding with the vehicle driven by plaintiff's decedent, Clifford M. Herron. Herron had seen Silbaugh lose control and was practically stopped, in the right-hand, southbound lane, when the collision took place.
The first contention made by Silbaugh on this appeal involves the court's instructions to the jury. The Vehicle Code (Act of April 29, 1959, P. L. 58, § 1002(f), 75 P.S. § 1002(f)) exempts police vehicles from speed restrictions under certain circumstances, as follows: "The speed limitations set forth in this section shall not apply to vehicles, when operated with due regard for safety, under the direction of the police in the
chase or apprehension of violators of the law, or of persons charged with or suspected of any such violation. . . . The exemption shall not, however, protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others." In accordance with this statute, the trial judge explained to the jury that Silbaugh could only be held liable if he acted "in reckless disregard of the safety of another," and that he could not be held liable if he had merely been negligent. See: Horsham Fire Co. v. Fort Washington Fire Co., 383 Pa. 404, 406, 119 A.2d 71, 72 (1956).
The plaintiff's complaint in this action averred that the acts alleged therein constituted "negligence." The complaint was never amended, but Silbaugh now contends that, because the trial judge instructed the jury with respect to "reckless disregard," there was an effective amendment. Silbaugh claims that the trial judge erred in this respect because such an amendment would have been barred by the statute of limitations if proposed by the plaintiff. See Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965); Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Cox v. Wilkes-Barre Ry. Corp., 334 Pa. 568, 6 A.2d 538 (1939); Herz v. Pennsylvania R. R., 302 Pa. 324, 153 A. 686 (1931). However, this issue is raised for the first time on this appeal and, therefore, ...