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decided: April 28, 1978.



Thomas A. Ehrgood, Lebanon, for appellants.

D. Plank, Soren P. West, Lancaster, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 254 Pa. Super. Page 470]

Appellant contends that the lower court erred in instructing the jury on the sudden emergency doctrine. We agree. Therefore, we reverse the order of the lower court denying appellant's post-verdict motions.

On March 2, 1976, appellant filed a complaint in trespass in the Lebanon County Court of Common Pleas against appellee. The complaint alleged that on February 7, 1975, appellee negligently lost control of his car while making a turn on Fonderwhite Road in South Lebanon Township and crashed into a tree. As a result, appellant, a passenger in the car, suffered serious injuries. On May 11, and 12, 1976, the lower court conducted a trial at which the parties presented the following testimony.

Appellee, called by appellant's attorney as on cross-examination and later called by his own attorney on direct examination, testified that at 10:30 p.m., on February 7, 1976, he and appellant attended a basketball game at Cedar Crest High School in Lebanon County. After the game, appellee agreed to drive appellant and two other passengers to a fast food restaurant. Appellant sat in the right rear seat of appellee's 1972 Fiat coupe. Appellee proceeded east on Linden Road, a narrow, twisting road with an unposted speed limit of 55 miles per hour. The weather was clear, and there was no ice or snow on the road. Linden Road curves into Fonderwhite Road at a 45-55 degree angle to the right. Linden Road declines towards the curve at a slope of approximately 15 degrees. After negotiating this curve, appellee planned to proceed south on Fonderwhite Road, a two lane 22 foot wide rural road with a macadam surface. Appellee testified that he was traveling at 40-45 miles per hour when he encountered the curve leading into Fonderwhite Road. As he went into the turn, he braked. His car then "slipped across to the other lane on some gravel and

[ 254 Pa. Super. Page 471]

    then [he] lost control and went off the road." Appellee did not see this gravel prior to losing control. His car cut through some barbed wire, entered a field, and then struck a tree. After the accident, appellee told a police officer that he had been going too fast for the gravelly conditions that existed on the Linden-Fonderwhite Road curve.

Police Officer Robert Dengler testified that he investigated the February 7, 1976 accident. According to Dengler, the night was clear and the road conditions were generally dry with an occasional patch of snow or ice. Although Officer Dengler did not observe any snow or ice on the Linden-Fonderwhite Road curve, he stated that there might have been some gravel on this portion of the highway as a result of cindering after a snowfall. There were no control signs at the Linden-Fonderwhite curve, and the speed limit remained at 55 miles per hour. While Officer Dengler did not discern any skid marks on the travelled portion of the road, he did find tire marks in a gutter on the east side of Fonderwhite Road.*fn1 These tire marks continued in the gutter for a distance of nearly 122 feet. Further tire marks revealed that when appellee finally managed to extricate his vehicle from the gutter, he careened into a tree in a field adjacent to Fonderwhite Road. When Officer Dengler questioned appellee after the accident, appellee admitted, without any elaboration, that he was going too fast for the curve.

Appellant testified that he was a passenger in the right rear seat of appellee's vehicle at the time of the accident. He did not notice any snow or ice on the roads which appellee travelled. While he observed the speedometer "pointing straight up" as appellee drove on Linden Road, appellant did not recollect whether appellee was in fact speeding or if any of the vehicle's occupants had asked appellee to slow down. Appellant stated that he was not concerned for his safety until the car left the road and severed the barbed wire. As a result of the accident, appellant suffered extensive facial and stomach injuries.

[ 254 Pa. Super. Page 472]

At the close of testimony, both parties submitted points for charge. Appellee's attorney asked the lower court to instruct the jury on the doctrine of sudden emergency. More particularly, he requested the court to charge the jury that if appellee unexpectedly encountered gravel or cinders without any warning on the curve leading into Fonderwhite Road and if this dangerous condition caused appellee to lose control of his vehicle, then the jury must find for appellee. Over appellant's objection, the lower court agreed to read a modified version of the proffered instruction. Subsequently, in its charge to the jury, the court stated: ". . . the defendant contends that he should have the benefit of what we call loosely in the law the doctrine of sudden emergency. Now, that rule is stated as follows: Where one finds himself in a position of danger which 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. So to benefit from this rule, first of all, you must find that there was a dangerous condition, and you must further find that the defendant was put into this situation through no negligent conduct of his own. And if you find that, then, of course, he would be excused from making any mistake of judgment that he may have made in ...

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