Jack R. Sparacino, Belle Vernon, for appellant.
John E. Hall, Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., and Manderino, J., did not participate in the decision of this case. Roberts, J., filed a dissenting opinion.
The central issue raised in this appeal concerns the sua sponte charge of the trial court relating to a theory of recovery not raised by plaintiff-appellant and in fact refuted by the testimony offered on appellant's behalf. For this reason the Superior Court reversed the trial court, vacated the judgment in favor of appellant and awarded a new trial.*fn1 We granted allocatur and now affirm the order of the Superior Court.
The pertinent facts of this case may be summarized as follows: On June 11, 1971, appellant Andrew Hrivnak, plaintiff below, filed a complaint in trespass in the Court of Common Pleas of Westmoreland County against appellee, William Perrone. The complaint alleged that on October 20, 1970, appellee was in the process of backing his vehicle against traffic on Donner Avenue, a one-way street in the City of Monessen, and "did violently strike the [appellant], who was standing on the sidewalk, near the curb; pinning [appellant] against a pole; resulting in the injuries hereinafter complained of." Appellee filed an answer to the complaint specifically denying that the vehicle operated by him struck appellant in any manner. Thus, as framed by the pleadings, the issue in
the lawsuit was whether appellant's vehicle did in fact strike the person of the plaintiff thereby causing the alleged injury.
At trial, appellant's testimony was consistent with the averments of his complaint to the effect that he was struck by the vehicle driven by appellee and was pinned against a pole.
". . . Well, anyway, I stood there waiting for the traffic to come within my means to cross and I took one step out into the street and here on top of me come [sic] a car. I looked, then I recognized it was a car and my gosh, I -- and hurriedly stepped back. I got that one foot out of the way and the car just kept coming by me and I tried to get this left knee out of the way. I couldn't make it and it just pinned me against the pole." [sic]
After appellant rested his case the appellee and a witness offered by him testified that no touching occurred. Their evidence indicated that appellant "stepped back" toward the curb when appellant noticed the approaching vehicle and then fell down. Russell McKeen, a factual witness produced by the appellee stated that he observed the incident from a second floor window across the street from where the event occurred. His testimony in pertinent part was as follows:
Q. Did you see the car moving?
A. Yes, before that, it was backing up slowly.
Q. It was backing up slowly?
Q. And Mr. Hrivnak, at the time the car was backing up towards him, had taken a step into the street; is that right?
A. Yes, he stepped back on, back onto the curb. I imagine when he seen the ...