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WALTER J. KENWORTHY AND LOUISE M. KENWORTHY v. WILLIAM BURGHART (06/28/76)

decided: June 28, 1976.

WALTER J. KENWORTHY AND LOUISE M. KENWORTHY, APPELLANTS,
v.
WILLIAM BURGHART



Appeal from the Final Judgment of the Court of Common Pleas of Delaware County at No. 13520 of 1969 (Civil Action, Law), and from the Denial of Plaintiffs' Motion for a New Trial. 108 OCTOBER TERM 1975.

COUNSEL

George J. O'Neill, Philadelphia, for appellants.

Robert B. Surrick, Media, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result.

Author: Spaeth

[ 241 Pa. Super. Page 269]

Appellants, Walter and Louise Kenworthy, filed a complaint in trespass for injuries suffered by Mrs. Kenworthy when she was allegedly struck by a car driven by appellee on January 4, 1968.*fn1 On March 1, 1973, after a four-day trial, the jury returned a verdict in appellee's favor. Appellant's motion for a new trial was denied by

[ 241 Pa. Super. Page 270]

    the trial judge sitting as a court en banc, 62 Del.Co. 80 (1974), and this appeal followed. We reverse.

The evidence may be summarized as follows. On January 4, 1968, appellant was employed as a crossing guard at the intersection of Glendale Avenue and Oak Way in Havertown Township, Delaware County. The weather was cold. It had snowed several days before the accident, and, although the parties disputed its extent, there was ice on Glendale Avenue. Appellant had been working at the intersection for approximately one-half hour before the accident, and testified that many other cars proceeding south on Glendale Avenue passed her without incident. At approximately 3:00 p. m., appellant saw appellee's car travelling south on Glendale, towards its intersection with Oak Way. Appellant had just completed supervising the crossing of some school-children, and was walking back towards the east curb of Glendale Avenue when she first observed appellee's car, roughly three hundred feet from the intersection. Estimating that the speed of the car was approximately fifty miles per hour, she began to walk quickly towards the east sidewalk of Glendale Avenue, and when she saw the car skidding across Glendale Avenue and heading towards her, she started to run. According to appellant, appellee's car ran over the curb and onto the sidewalk, striking her right thigh and knocking her onto her buttocks. Appellee, on the other hand, insisted that his car stopped at the curb and did not strike appellant.*fn2 Appellant's injuries necessitated medical care that included a three-week period in traction at a Philadelphia hospital.

[ 241 Pa. Super. Page 271]

Appellant advances five contentions on this appeal: that the lower court applied the incorrect standard of review in determining whether the verdict was against the weight of the evidence; that the trial judge's bias and prejudicial remarks deprived appellant of a fair trial; that the judge's charge on the law concerning skidding was incorrect; that the judge should not have charged on the doctrine of unavoidable accident; and that the judge erred in charging that the jury could draw an adverse inference from the failure of appellant's husband to testify, and, conversely, in failing so to charge concerning appellee's failure to call one of his examining physicians. We shall not, however, address all of these contentions. The first, concerning the standard of review to be applied in determining the weight of the evidence, was not briefed or argued to the lower court;*fn3 it was therefore abandoned. Orga v. Pittsburgh Rys. Co., 155 Pa. Super. 82, 85, 38 A.2d 392, 392 (1944); cf. Commonwealth v. Keysock, 236 Pa. Super. 474, 478-80, 345 A.2d 767, 770 (1975). The last, on adverse inferences, presumably will not recur on retrial.

I

Did the Trial Judge's Bias and Prejudicial Remarks Deprive Appellant of a Fair Trial?

Counsel for appellant has devoted seventeen pages of his brief to the argument that appellant's case was irremediably prejudiced by "the trial judge's rulings, questions, remarks, and general hostile attitude throughout the trial in the presence of the jury." (Brief for Appellant at 12-28) In considering this argument, we have borne in mind the admonition by Chief Justice Kephart that since allegations of bias and prejudice "constitute the most serious charges that can be hurled against

[ 241 Pa. Super. Page 272]

    a judge, the record must clearly show prejudice, bias, capricious disbelief or prejudgment" before reversal is warranted on this ground alone. Pusey's Estate, 321 Pa. 248, 262, 184 A. 844, 850 (1936); Fischer v. Commercial National Bank, 321 Pa. 200, 201, 184 A. 57, 58 (1936) ("[n]ew trials for such reasons should be avoided unless the errors complained of are plainly prejudicial to one of the parties"). When the trial judge is assailed as lacking impartiality, "[t]he only way to meet this point is to examine the testimony, not depending upon sentences plucked out here and there." Biggs v. Public Service Coordinated Transport, 280 F.2d 311, 314 (3d Cir. 1960) (Goodrich, J.).

We have reviewed each portion of the record that according to appellant's counsel demonstrates the trial judge's bias. Contrary to counsel's statement that the trial judge's conduct conveyed to the jurors the impression that "the trial judge did not think much of plaintiff's case nor the way her counsel was presenting it, while on the other hand, he highly respected defense counsel and was sympathetic to defendant" (Brief for Appellant at 27), we think that the judge was making an effort in good faith to clarify the testimony, and to correct counsel's inartful and, from an evidentiary perspective, frequently improper examination of witnesses. This was unquestionably within the judge's discretion. Slater v. Rimar, Inc., 462 Pa. 138, 149, 338 A.2d 584, 589 (1975) (trial judge's inherent power to control course of litigation); Fischer v. Commercial National Bank, supra at 202, 184 A. at 58-59 (trial judge's control over extent of cross-examination); Berry v. Heinel Motors, Inc., 162 Pa. Super. 52, 58, 56 A.2d 374, 377 (1948) (same). See also Mittleman v. Bartikowsky, 283 Pa. 485, 486, 129 A. 566, 567 (1925); Dougherty v. Waterman S. S. Corp., 265 F.2d 284, 288 (3d Cir. 1959). We agree with the trial judge's statement that a judge "must be more than a mere umpire," 62 Del.Co. at 82, and are of the opinion that the

[ 241 Pa. Super. Page 273]

    trial judge's conduct of this case was aimed at the enhancement, rather than the diminution, of the fairness of the trial.

II

Did the Trial Judge Err in Charging on the Doctrine of Unavoidable Accident?

In his charge the trial judge said:

Now, members of the Jury, sometimes the happening of an accident is unavoidable and happens or occurs without a Defendant being negligent. On the other hand, a fact that an accident occurs does not of itself prove that there was negligence on anyone's part.

You must determine the true facts in light of the law as we have given it to you as respects the matter of negligence, to determine whether or not the defendant was negligent. If after doing so you conclude the Defendant was not negligent and that the accident was unavoidable, that is with the exercise of reasonable duty, of care required and defined for you, the Defendant did not cause nor could have avoided the happening of this accident, then no one can recover.

(N.T. 455)

Appellant is correct that no change on the doctrine of unavoidable accident should have been given if "on no possible theory" could the accident have been unavoidable. Matthews v. Derencin, 360 Pa. 349, 352, 62 A.2d 6, 7-8 (1948). In Matthews, the trial judge charged that "'[i]f this was purely an unavoidable accident, there can be no recovery in this case.'" Id. at 352, 62 A.2d at 7. The Supreme Court held the charge improper since "the testimony firmly established that there must have been negligence" on the part of either or both of the defendants. Id. at ...


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