No. 642 April Term, 1979, Appeal from the Order and Judgment in the Court of Common Pleas of Venango County, Civil Division, No. 102, 1977.
Clifford J. Kirvan, Titusville, for appellants.
John R. Gavin, Oil City, for appellee.
Price, Brosky and Montgomery, JJ. Montgomery, J., files a dissenting statement.
[ 289 Pa. Super. Page 270]
Appellants, Bernard and Martha Hanlon, Jr., commenced this action in trespass on March 21, 1977, to recover damages for injuries incurred in a motor vehicle accident. On October 3, 1978 a jury verdict was entered in favor of appellee, Norman Sorenson, the driver of the subject vehicle. Appellants filed a timely motion for a new trial, alleging errors in the trial judge's charge to the jury.*fn1 Appellants' motion was
[ 289 Pa. Super. Page 271]
denied, judgment was entered June 19, 1978 and this appeal ensued.*fn2 For the following reasons we hold the trial court's order to be error and remand for a new trial.
On April 17, 1975, at approximately 2:00 a. m., appellee was driving westerly on Route 227 in Harmony Township, Forest County. Appellant Bernard Hanlon, Jr. [hereinafter Bernard] was a passenger in appellee's vehicle. The night was clear and road conditions were dry. The parties were traveling in a 45 mile per hour zone and had been on the road for five to six miles.*fn3 Appellee testified that as the vehicle approached a turn Bernard cautioned him to "[w]atch this turn it's a bad one." (N.T. 137).*fn4 As appellee was attempting to negotiate the turn, he observed five to six deer advancing towards the road from a private driveway at least fifty to fifty-five feet from the road on which he was traveling. Although appellee applied the brakes, his vehicle skidded on loose gravel accumulated on the road surface. The vehicle went out of control, striking a boulder and injuring Bernard.
The grant or denial of a new trial is a determination within the sound discretion of the trial judge. Macina v. McAdams, 280 Pa. Super. 115, 421 A.2d 432 (1980); McGowan v. Devonshire Hall Apts., 278 Pa. Super. 229, 420 A.2d 514 (1980). The party appealing the denial of a new trial thus bears a heavy burden. Mohr v. Plotkin, 186 Pa. Super. 615, 142 A.2d 414 (1958). The trial judge's decision "will be reversed on appeal only where the record indicates that the
[ 289 Pa. Super. Page 272]
trial judge committed an error of law or clearly and palpably abused his discretion." Palmer v. Brest, 254 Pa. Super. 532, 536, 386 A.2d 77, 79 (1978), citing Tomasek v. Monogahela Ry. Co., 427 Pa. 371, 235 A.2d 359 (1967); Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 192 A.2d 689 (1963).
"Where the accuracy of a charge is in issue, an appellate court must look to the charge in its entirety against the background of evidence in order to determine whether or not error was committed and whether that error was prejudicial to the complaining party." Slavish v. Ratajczak, 277 Pa. Super. 272, 274, 419 A.2d 767, 768 (1980). See also McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970). In the instant case the trial judge charged the jury on the contributory negligence and sudden emergency doctrines. Appellants first contend that it was error to submit the question of contributory negligence to the jury since there was no evidence to ...