No. 2257 Philadelphia, 1981, APPEAL FROM THE ORDER OF JULY 28, 1981 IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, CIVIL ACTION, LAW, No. 79-3399
Gary T. Harris, Williamsport, for appellant.
Ambrose R. Campana, Williamsport, for appellee.
Cavanaugh, Wickersham and Cirillo, JJ.
[ 303 Pa. Super. Page 415]
This action in trespass arises out of injuries that Judy Fama/appellant/minor plaintiff suffered when she was struck by a vehicle driven by Irvin Smith/appellee/defendant. The jury returned a verdict for appellee.*fn1 Appellant's motions for a new trial or judgment notwithstanding the verdict were denied. Appellant filed this appeal arguing solely that the court's charge to the jury was in error. We agree and order a new trial.
[ 303 Pa. Super. Page 416]
The relevant facts are as follows: The accident occurred on a four-lane, divided limited-access highway. Appellant lived with her family in a mobile home park near this highway. Appellant was six years of age at the time of the accident and her companion was a 9 or 10 year old girl. The two had passed under the highway through a conduit. They climbed the embankment, stepped over the guardrail and began to cross the highway. The appellee testified that as he rounded a slight curve on his motorcycle, he saw two girls climbing the embankment to his right about a quarter of a mile away. Appellee stated that the two girls seemed to be looking at him as they stepped over the guardrail.
The girls began to cross the highway, entered the right-hand lane and stopped in approximately the middle of that lane, at a point 500 feet away from the appellee. A pickup truck which was travelling about 200 feet in front of appellee, pulled into the passing lane and appellee followed. Appellee had been proceeding at about 55 miles per hour, upon seeing the girls he slowed to 40 or 45 miles per hour. He did not reduce his speed below 40 miles per hour. After the pickup truck passed the girls, and as the appellee approached, the younger girl ran into his path and impact occurred. Appellee testified that he did not consider stopping because the children were standing still and the eldest child was watching the traffic.
Initially, we note that the denial of a new trial is within the sound discretion of the trial court and will not be reversed absent a palpable abuse of discretion or a plain error of controlling law. Benkovitz v. Urban Redevelopment Auth. of City of Pittsburgh, 56 Pa. Commw. 523, 425 A.2d 1178 (1981). Appellant's assignment of error is that the court erred in not applying the controlling law in its charge to the jury. It is settled that although the grant or refusal of a new trial is a matter within the sound discretion of the trial court, reversal is required where the jury has been improperly instructed. National Products Co., Inc. v. Atlas Financial Corp., 238 Pa. Super. 152, 364 A.2d 730 (1975).
[ 303 Pa. Super. Page 417]
The lower court charged the jury generally upon negligence and ordinary care and then more specifically as follows:
Generally speaking, a driver is not required to anticipate a sudden and unsuspected dash into the path of his car by a child. However, if there are circumstances which give the operator reason to apprehend that a child might run into a place of danger of injury by a motor vehicle, then there is a duty imposed upon the operator to exercise a higher degree of care than under ordinary circumstances. This is so because young children are known to act upon immature judgment, childish instincts and impulses. And others who are chargeable with the duty of care toward them must calculate upon this and take precautions accordingly. In this regard, the younger the child, the less mature judgment can be expected, and correspondingly, the higher degree of care is required of those chargeable with the duty of care who have reason to apprehend that the child might put himself or herself in a position of danger. It is for ...