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DONNA L. STUBBS v. MICHAEL F. FRAZER AND BUFFALO VAN AND STORAGE CO. (12/23/82)

filed: December 23, 1982.

DONNA L. STUBBS, APPELLANT,
v.
MICHAEL F. FRAZER AND BUFFALO VAN AND STORAGE CO.



No. 1902 Philadelphia, 1981, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Cumberland County, No. 2028 Civil, 1980

COUNSEL

J. Michael Eakin, Carlisle, for appellant.

William F. Martson, Carlisle, for appellees.

Wieand, Cirillo and Popovich, JJ.

Author: Wieand

[ 308 Pa. Super. Page 258]

Donna L. Stubbs was injured when she drove her vehicle into the rear of a motionless truck on a Route 15 exit ramp in Cumberland County. A jury found that she had been 75% negligent and Michael P. Frazer, the operator of the truck, 25% negligent in causing the accident. On appeal from a judgment entered in favor of Frazer and his employer, Buffalo Van and Storage Co., Stubbs contends that it was error for the trial court to refuse a jury instruction that the Pennsylvania Comparative Negligence Law*fn1 was inapplicable if Frazer were found guilty of wanton misconduct. The trial court refused the instruction because there was no evidence of wantonness on the part of the truck driver. We agree that there was no evidence of wanton misconduct and, therefore, affirm the judgment.

On September 23, 1978, between the hours of 1:00 and 2:00 o'clock, a.m., Frazer, accompanied by Kevin Connolly, was driving a truck owned by Buffalo Van and Storage Co. in a southwardly direction on U.S. Route 15 toward Mechanicsburg. As he approached the Slate Hill Road interchange,

[ 308 Pa. Super. Page 259]

    the truck's headlights flickered. Frazer passed this interchange, but, when the lights flickered on and off two or three times more, he moved onto the next available exit ramp at Rossmoyne Road-Wesley Drive. This exit ramp was approximately one-half mile south of the Slate Hill Road exit. As Frazer approached the exit ramp he activated the emergency flashers and slowed the truck's speed. The ramp was .3 mile in length and included a 13 feet wide paved portion and an unpaved berm of similar width. A spur leaves the ramp to the left at a distance of approximately .2 mile from Route 15. As Frazer moved along the ramp at a speed which he estimated to be 10 m.p.h., the truck lights continued to flicker. When he reached a point that was estimated to be 30 feet from the spur, the truck's electrical system failed, the motor stopped, and the truck came to rest in a darkened condition. Within eight to ten seconds thereafter and before the occupants could exit the truck, it was struck in the rear by appellant's car.

In order to prove the foregoing facts, appellant called the driver of the truck as of cross-examination. Her counsel inquired regarding the absence of flares but was told that the accident occurred before the driver could retrieve available flares and get out of the truck. The exit ramp was unlighted and Frazer said that he drove the paved portion of the ramp because he was unaware that there was a berm that would have enabled him to drive the truck along the unpaved portion thereof.

Appellant requested the trial court to instruct the jury as follows:

"5. You should consider whether the defendants' conduct constituted wanton misconduct in reckless disregard of the plaintiff's safety.

6. If you find the defendants' conduct constituted wanton misconduct in reckless disregard of the plaintiff's safety, then, even if the plaintiff was to any degree negligent herself, this negligence ...


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