No. 3046 October Term, 1978, Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Civil Division - Trespass, No. 2928 November Term, 1972.
Before Spaeth, Hester and Cavanaugh, JJ. Cavanaugh, J., files a Dissenting Opinion.
CAVANAUGH, J., files a Dissenting Opinion.
I believe the court erred in not granting the first point for charge and the first part of the third point as set forth in the majority opinion. The court in charging on the emergency doctrine stated:
The rule of sudden emergency provides that where one finds himself or herself in a position of danger which was not the result of his or her negligence, he or she will not be held responsible for a mistake in judgment in extricating himself or herself from the danger created by the sudden emergency. One confronted by a sudden perilous situation not created by his or her own fault is not required to exercise the highest or even the ordinary degree of judgment.
One may be legally blameless in spite of an error of judgment where he or she is placed in a situation of peril through no fault of his or her own where it would be unreasonable to hold him or her to exercise cool and correct judgment.
The defendant wants you to apply this principle to this case because of the possibility that you might conclude that she could have acted differently when the brakes allegedly failed. She contends that under the circumstances you should not hold her to strict account-ability for accuracy of judgment or for failing to take an alternative course of action.
Any party who was free from fault in bringing about the perilous situation may claim advantage of the emergency doctrine. When one claims that he or she was subjected to a sudden emergency, the doctrine will not come to that person's rescue if his or her negligence caused the situation to arise.
The question of whether the rule of sudden emergency applies in this case is one for you to decide in the light of all the evidence and the circumstances of this case.
Ladies and gentlemen of the jury, with reference to the emergency doctrine which I have discussed with you, I want to state further what the law is on the matter as an addition to what I've said.
The jury must determine whether the actions of the defendant, from the time of the brake failure, if they believe there was a brake failure, until the moment of impact, taking into account the Court's charge as to negligence and the sudden emergency doctrine, used the means available to her to avoid the accident. And, of course, negligence cannot be applied because of a failure to perform a duty in such sudden emergency which did not arise out of the negligence of the defendant and where there was no opportunity to apprehend, that is appreciate, the situation and act accordingly. When one finds himself in a position of danger which is not the result of his negligence, he is not responsible if he makes a ...