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FARBACHER v. FRANK (04/03/74)

decided: April 3, 1974.

FARBACHER
v.
FRANK, APPELLANT



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1970, No. 2057, in case of John B. Farbacher v. Alan I. Frank.

COUNSEL

Jane L. Boucher, with her Herbert Grigsby, and Thomson, Rhodes & Grigsby, for appellant.

William A. Weiler, with him Glasso and Weiler, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Watkins, P. J. Dissenting Opinion by Spaeth, J.

Author: Watkins

[ 228 Pa. Super. Page 36]

This is an appeal from the judgment of the Court of Common Pleas of Allegheny County, Civil Division, entered on a verdict entered in favor of the plaintiff-appellee and against the defendant-appellant in the amount of $15,000.00 in a trespass action; and from the order of the court en banc below denying the appellant's motion for a new trial and for judgment n.o.v.

[ 228 Pa. Super. Page 37]

Reading the evidence in the light most favorable to the appellee in whose favor the verdict was rendered, the facts are as follows:

On December 12, 1969, at or about 9:30 p.m., the appellee, John B. Farbacher, backed his car out of a vacant lot on Kittaning Street in Shaler Township, Pennsylvania. This street was on a grade between 30-45%. The appellee stopped the car at approximately the center line to talk to some boys. The appellant, Alan I. Frank, was proceeding down the hill in the opposite direction from the appellee in a westwardly direction and had a clear view of the area for some 300 feet. He proceeded down the hill with undiminished speed and struck the left side of the appellee's vehicle causing damage to the car and injuries to the appellee. A summary of all the testimony reveals that the appellant's automobile was between 300 and 400 feet away from the appellee's car when first he noticed it.

A review of this record discloses that the testimony concerning the appellee's negligence and the appellant's contributory negligence was conflicting so that the matter was for the jury and was properly submitted.

The appellant complains that the court erred in refusing to charge the jury on the "sudden emergency" doctrine. We do not agree. The facts indicate that there was no sudden emergency and also because the rule does not apply if the emergency arises through the prior negligence of the one seeking the protection of the rule. Casey v. Siciliano, 310 Pa. 238, 165 A. 1 (1933). Nor is it available to one whose negligence produces the emergency. Kennedy v. Balogh, 397 Pa. 638, 156 A.2d 847 (1959). Henry et al. v. Trabosh, 224 Pa. Superior Ct. 372, 307 A.2d 446 (1973).

The appellant also contends that the court below erred in failing to instruct the jury as to the application of 75 P.S. ยง 1004 ...


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