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THOMAS C. JUNK v. EAST END FIRE DEPARTMENT AND WALTER W. BARNES (12/29/78)

decided: December 29, 1978.

THOMAS C. JUNK, APPELLANT,
v.
EAST END FIRE DEPARTMENT AND WALTER W. BARNES, JR., APPELLEES



No. 115 April Term, 1978, Appeal from the Order of Judgment of the Court of Common Pleas of Mercer County, Pennsylvania, Civil Division, at No. 74 June Term, 1973.

COUNSEL

Robert J. Tesone, Sharon, for appellant.

William J. Madden, Sharon, for appellees.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, J., concurs in the result. Spaeth, J., files a concurring and dissenting opinion. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 262 Pa. Super. Page 478]

This appeal comes to us following judgments entered in appellees' favor on appellant's complaint against appellees and on appellees' counterclaim against appellant. Appellant raises nine issues for our consideration. We agree with appellant that the lower court erred in instructing the jury on appellees' counterclaim. Therefore, we reverse the judgment on the counterclaim and remand that part of the case for a new trial. We find no reversible error concerning appellant's complaint and, accordingly, affirm that part of the judgment.

Briefly stated the facts are as follows: On April 29, 1971, at about 8:00 P.M., appellant approached the intersection of Maple Drive and East State Street (Business Route 62) in Hermitage Township, Mercer County. He stopped at the intersection for a red light and, when the signal turned green, he proceeded east on Route 62 and started to turn left onto Dutch Lane, a north-south road running perpendicular to Route 62 approximately fifty feet east of the Maple Drive-Route 62 intersection. In making the turn appellant had a green light in his favor. As he was turning toward Dutch Lane, he heard a siren and saw headlights coming toward him from his right; when he reached the west bound passing lane of Route 62, appellant's car and appellees' ambulance collided.

At the time of the collision, the ambulance was transporting an accident victim to the Sharon General Hospital. As the ambulance approached the Maple Drive-Route 62 intersection, Appellee Barnes, the driver, observed that the traffic signal was red against him. He slowed the ambulance to allow traffic time to clear the intersection. The ambulance's siren and warning lights were in operation. The collision occurred shortly after he entered the intersection.

[ 262 Pa. Super. Page 479]

Appellant filed suit against the fire department and Appellee Barnes for property damage and personal injury. The fire department counterclaimed for property damage. A jury returned a verdict against appellant on his complaint and in favor of appellees on their counterclaim. Appellant filed a timely motion for new trial which was denied by the court below. This appeal followed.

I

We turn first to appellant's appeal from the judgment entered against him on appellees' counterclaim. Appellant alleges that the trial judge erred when he instructed the jury that if it found appellant to be negligent, only recklessness and not negligence on the part of Appellee Barnes would bar appellees from recovery. We agree with appellant that this instruction was erroneous and, accordingly, reverse.

The emergency vehicle provisions of the Motor Vehicle Code*fn1 protect the operators of emergency vehicles from liability unless they act with reckless disregard for the safety of others. The recklessness provisions, however, do not enable the driver or owner of an emergency vehicle to recover if the vehicle has been driven negligently, albeit not recklessly. Negligent conduct, whether or not arising in an emergency situation, should not be compensable unless the party being sued was reckless. Since there was no allegation in this case that Appellant Junk was reckless and since it is possible that Appellee Barnes was contributorily negligent, in which case appellees would have been barred from recovering against appellant, a new trial must be granted as to the counterclaim.

[ 262 Pa. Super. Page 480]

II

Next we turn to appellant's appeal from the judgment entered in appellees' favor on appellant's complaint.

A.

Appellant initially argues that the trial judge erred in instructing the jury concerning the emergency vehicle doctrine and the recklessness standard. Reading the charge of the court in its entirety and against the background of the evidence in this particular case, as we must, we find appellant's argument to be without merit. Whitner v. Lojeski, 437 Pa. 448, 454, 263 A.2d 889, 892 (1970).

Pursuant to the Motor Vehicle Code of 1959, emergency vehicles, including ambulances, are not subject to ordinary traffic regulations. For example, emergency vehicles "when operated with due regard for safety" are excluded from following speed limitations (§ 1002(f)), right of way rules (§ 1014(b)), stop signs (§ 1016(d)), and other traffic signals or sign interpretations (§ 1028(d)). The Act of April 29, 1959, P.L. 58, §§ 1002, 1014, 1016, 1028, as amended, 75 P.S. §§ 1002, 1014, 1016, 1028. These exceptions, however, do not protect emergency vehicles from liability when the vehicles are driven in "reckless disregard of the safety of others." 75 P.S. §§ 1002, 1014, 1016, 1028. Horsham Fire Company v. Fort Washington Fire Company, 383 Pa. 404, 406, 119 A.2d 71, 72 (1956); Roadman v. Bellone, 379 Pa. 483, 488, 108 A.2d 754, 757 (1954).

Appellant objects to that part of the court's charge which stated that in order to prove appellees liable, appellant was required to prove reckless conduct by Appellee Barnes. In support of his argument, appellant cites our Supreme Court's decision in Pressler v. Pittsburgh, 419 Pa. 440, 214 A.2d 616 (1965). In that case, the Court found the trial court's instructions to be erroneous because the trial court intimated that one operating under the emergency vehicle doctrine could be negligent and not liable for damages arising from the negligence. Specifically, the Court said,

[ 262 Pa. Super. Page 481]

The trial court properly charged on this feature of the code but seemed to suggest that a fireman could possibly be a little negligent and yet not be at fault. No one is allowed to be a little negligent without responsibility any more than one is allowed to commit at will a little crime. Circumstances may wipe out culpability or legal responsibility but no one is authorized to violate the law. The court apparently was of the impression that since the Code added the specific admonition that a fireman would be held responsible for a "reckless disregard of the safety of others," the Code meant to imply that anything less than such reckless disregard was tolerable and allowable. This, of course, is not so. If a fireman, under the stress of his grave responsibility to save life and property, transcends the limits of a municipal ordinance the latter may well be swallowed up in the greater duty of the fireman to preserve life. Briefly then, it may be stated, and should be repeated, with the resounding effect of a fire bell sounding the alarm, that negligence is the lack of due care under the circumstances.

Id., 419 Pa. at 446, 214 A.2d at 619. The Court went on, however, to find that the trial court corrected any error in the charge by stating that the jury was to disregard any statement concerning negligence and

"merely determine, again from all the circumstances, all the testimony, all the plans, all the exhibits, all the facilities brought to your attention, the location, the area, the scene, in other words, any knowledge that you have about this matter brought out during the course of this trial, determine where the fault lies in this situation when read in the light of those provisions."

Id., 419 Pa. at 447, 214 A.2d at 619. We do not find the decision in Pressler v. Pittsburgh to have been violated in this case.

Our courts have recognized the difficulty in defining the test of liability in emergency doctrine cases. See Ferruzza v. Pittsburgh, 394 Pa. 70, 76, 145 A.2d 706, 708 (1958). The standard most generally adopted, however, is that set forth in Section 500 of the Restatement (Second) of Torts:

[ 262 Pa. Super. Page 482]

The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

See Cavey v. Bethlehem, 331 Pa. 556, 558, 1 A.2d 653, 654 (1938); Reilly v. Philadelphia, 328 Pa. 563, 567, 195 A. 897, 899 (1938). The courts have also defined recklessness in terms of circumstances present at the scene and time of the accident: Liability is imposed under the emergency vehicle doctrine if the conduct "under all the circumstances [shows] a reckless disregard of the safety of others." Ferruzza v. Pittsburgh, 394 Pa. at 76, 145 A.2d at 708. "[T]he test in all such circumstances is whether the vehicle was being operated 'with due regard for safety' and not in 'reckless disregard of the safety of others.'" Long v. Schumacher, 342 Pa. 356, 360, 20 A.2d 765, 767 (1941). "What constitutes a reckless want of care on the part of the operator of a motor vehicle varies with the circumstances of the particular case." Cavey v. Bethlehem, 331 Pa. at 558, 1 A.2d at 654. "'In order that the actor's conduct may be in reckless disregard of the bodily security of others, it must not only involve a high degree of probability that death or serious bodily harm will result therefrom, but the circumstances must be such that the risk so created is unreasonable.' Restatement [Torts], section 500, comment (a)." Reilly v. Philadelphia, 328 Pa. at 567-68, 195 A. at 899.

The decision in Pressler v. Pittsburgh does not overrule the decisions in the above cited cases. Indeed, the only difference is one of semantics. We agree that negligence is lack of due care under the circumstances. In a case involving the emergency vehicle doctrine, however, due care and negligence become questions of degree. What may be negligence in ...


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