Appeal from order of Court of Common Pleas of Berks County, April T., 1970, No. 83, in case of Leland F. Henry and Timothy C. Goho, a minor, by Louise A. Goho, his mother and natural guardian, and Richard L. Goho, father of the minor in his own right v. Grace M. Trabosh.
Bernard Mendelsohn, with him Elliot B. Goldstan, and Baskin & Mendelsohn, for appellants.
George R. Eves, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J. Spaulding, J., concurs in the result. Watkins and Jacobs, JJ., dissent.
[ 224 Pa. Super. Page 373]
This appeal comes before us on plaintiff-appellants' motion for new trial in a trespass action based on matters involving weight of evidence and trial error. The court refused the motion, but we are of the opinion a new trial is warranted.
On March 12, 1969, at or about 5:00 p.m., a collision between two automobiles occurred at the intersection of highway route 61 and legislative route 06002 in Perry Township, Berks County. Route 61 is a fourlane divided through-highway, 48 feet wide, having two lanes running in each direction, north and south, with a four-foot medial strip. Route 06002 is an intersecting road running in an east to west direction, 16 feet 9 inches wide and having a stop sign at the intersection. Defendant was operating her vehicle in a westerly direction on route 06002 where it intersects with route 61. Defendant stopped at the stop sign where she had a view of 500 feet northward, the direction of plaintiffs southbound travel, and when there was no traffic visible, started across route 61. When she reached the medial strip of route 61, she again looked to her right in a northerly direction and first saw plaintiff-Henry's car approximately 150-200 feet up the road approaching at what she estimated to be 65 miles per hour. Defendant, who was then traveling at 15-25 miles per hour, did not stop but continued to cross the southerly
[ 224 Pa. Super. Page 374]
lanes of route 61 on which plaintiff was traveling in the lane furthest from the medial strip where the collision occurred. Plaintiff-driver-Henry testified he first saw defendant's car in the middle of the two northerly lanes of route 61 when he was 150-200 feet away from the intersection at which time he blew his horn and applied his brakes slightly. At trial plaintiff-Henry testified he saw defendant slow down at that point and then "come right out and right into me", at which time he applied his brakes hard and immediately, leaving a skid mark of 68 feet to the point of impact.*fn* At trial, when asked why she entered the southern lanes where the collision occurred, defendant driver answered as follows: "Q. Mrs. Trabosh, when you first saw Mr. Henry's car, you say you were at the middle of the highway? A. Yes. Q. And he was about 150 to 200 feet to your right, going about 65 miles an hour; is that correct? A. This is my judgment. Q. Why didn't you let him go by? A. How could I? If I had stopped traveling at the speed, you know, from pulling out at the stop sign, I wouldn't have stopped right in the middle of the highway; I would have traveled some distance and this would have brought me directly into his lane."
It is on these facts that we now decide the merit of plaintiff's objection to the lower court's inclusion in its charge the following instruction on sudden emergency: "There is also one other rule that may be helpful to you in your consideration of the case, depending upon the facts that you find, and that is the rule of sudden emergency. The sudden emergency rule is that, where
[ 224 Pa. Super. Page 375]
one finds himself in a position of danger that was not the result of his own negligence, he will not be held responsible if he makes a mistake of judgment in extricating himself from the dangerous situation in which he finds himself. One confronted by a sudden perilous situation not created by some fault of his own is not required to exercise the highest or even the ordinary degree of judgment. And when I use the masculine 'his', it can be transposed to the feminine 'her', and 'him' to 'her', depending on the facts as you find them."
At a later point in the charge, the judge said: "You will also, of course, remember what I said to you about sudden emergencies, and this can apply to either one or the other or both of ...