Joseph R. McFadden, Jr., Media, with him Francis A. Ferrara, Media, for appellants.
Thomas W. Murphy, Philadelphia, for appellee, Lillian M. Mitchell.
No appearance entered nor brief submitted for appellee, Anthony R. Yannuzzi.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 49]
This action comes before our court as an appeal from an order of the lower court denying appellants' motion for a new trial. The motion was based upon alleged errors by the trial judge in charging the jury in a trespass action. We hold the lower court's order to be error and remand for a new trial. The following facts were adduced at trial.
On January 4, 1970, appellant, Anthony Yannuzzi, was operating a motor vehicle in a westerly direction on a road in Delaware County. With him in the vehicle were the other appellants, Catherine, his wife, and Thomas, their minor son. At the same time, appellee, Lillian M. Mitchell, was operating her motor vehicle in an easterly direction on the same road in Delaware County. At the time of the incident, both berms of the road were partially covered with snow causing a narrowing of the travelable portion and restricting passage to the middle of the road. As the two vehicles met, the left front portion of appellants' vehicle struck the corresponding portion of appellee's vehicle. Appellants allege that they were in their lane of travel at all times and that appellee crossed over into their lane, while appellee makes a similar claim against appellants. Both vehicles came to rest with their left wheels on the center of the road.
Appellants brought suit against appellee for their personal injuries and property damage arising from the collision. Appellee joined appellant Anthony Yannuzzi as an additional defendant, alleging that he had acted in a negligent manner and had been solely responsible for causing the accident. On February 19, 1974, a trial was commenced in the Court of Common Pleas of Delaware County. The trial lasted four days, and on February 22, 1974, the jury returned a verdict on behalf of appellee against appellants and on behalf of Anthony Yannuzzi in his capacity as additional
[ 260 Pa. Super. Page 50]
defendant. From the denial of appellants' motion for a new trial based upon allegations of error, appellants have brought this appeal.*fn1
In effecting this appeal, appellants' primary contention is that the trial judge's instruction to the jury was fatally flawed in numerous respects. In ruling upon these contentions we will review each alleged error in the charge as it relates to the pertinent principles of law.*fn2
Appellants' points one and seven for error are that the trial judge instructed the jury that they may deny recovery to Mrs. Yannuzzi based upon a theory of contributory negligence. Appellants allege that the giving of this charge was in error since there was no evidence in the record to support a charge to the jury based upon the alleged contributory negligence of Mrs. Yannuzzi.
During the trial, appellee proceeded under a theory that Mrs. Yannuzzi had been guilty of contributory negligence in that she failed to warn her husband of the impending collision. The trial judge instructed the jury that if Mrs. Yannuzzi observed the Mitchell vehicle in their lane of travel, she then had a duty to warn, and that contributory negligence could be found if she had a reasonable length of time to warn, and her failure to warn contributed to the
[ 260 Pa. Super. Page 51]
accident. (N.T. 526-27). Subsequently, the court instructed:
"Now, the evidence which the defendant maintains constitutes contributory negligence on the part of the wife plaintiff, that is Mrs. Yannuzzi, was, as I have already mentioned to you, if you find from the evidence that there was a duty to warn the driver, if you find, further, that there was time, in other words you must look at the circumstances and see if she had the time to act, you will judge this from your own recollections of the facts and the testimony here, and then if you find that she did not fulfill that duty, remember you have to have already found the duty, and that if you find that she had sufficient control to do something, in other words the law does not require a person to do a useless act, either, and if you find that her failure to warn was a proximate cause of the loss or the damage, ...