No. 861 Pittsburgh 1981, Appeal from the Order of August 18, 1981, Court of Common Pleas, Somerset County, Civil Action, Law, No. 303 Civil 1977.
Daniel R. Gigler, Pittsburgh, for appellant.
David J. Flower, Somerset, for appellee.
Hester, McEwen and Johnson, JJ. McEwen, J., filed a dissenting opinion.
[ 319 Pa. Super. Page 561]
This is an appeal from an order granting appellee, Raymond Paul Saylor, a new trial. In reviewing the decision of a trial judge to grant a new trial, we may not reverse the trial judge's order, unless he has committed a clear abuse of discretion or an error of law which necessarily controlled the grant of a new trial. Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Sindler v. Goldman, 309 Pa. Super. 7, 454 A.2d 1054 (1982). Finding no abuse of discretion or error of law, we affirm.
On November 13, 1975, appellee was involved in an accident along Route 30 near Jenner Township, Somerset County, Pennsylvania. Shortly after sunset, appellee was helping to unload boats from a tractor-trailer situated on the southerly berm of the highway, when he was struck by the
[ 319 Pa. Super. Page 562]
extended mirror on a pickup truck. The pickup truck was operated by appellant, Deborah Rose-Todaro.
Appellee commenced an action in trespass for the injuries sustained as a result of the accident. His complaint alleged inter alia that appellant was negligent "in failing to operate [her] vehicle so as to assure [that] the entire vehicle was within the roadway."
The case was tried before a jury. At trial, one of the basic issues for the jury's determination was the location of appellee and the pickup operated by appellant when the accident occurred. During his testimony, appellee estimated that he was six feet from the roadway when the accident occurred. This constituted the only direct reference as to appellee's position. The Pennsylvania State Trooper who investigated the accident testified that the side of the truck from which appellee worked was located approximately five feet from the roadway; and estimated that the mirror of the pickup driven by appellant extended at least fifteen inches from the side of the truck. Other testimony from appellee's witnesses concerning the position of trailer at which appellee worked was inconsistent. Appellant's testimony did not indicate where appellee was located when the accident occurred, rather she testified that she steered her vehicle close to the center line after discovering that men were working on the side of the road.
After the close of testimony but prior to the trial judge's instructions to the jury, appellee requested that the trial judge instruct the jury in accord with the following point for charge:
9. There is testimony by the defendant that her vehicle never left the highway. There is testimony that the defendant's vehicle was equipped with western style or overhanging mirrors. If you find that the defendant drove her vehicle so close to the edge of the roadway so as to allow the overhanging or western style mirror to strike the plaintiff this is negligence on the part of the defendant and your verdict should be in favor of the plaintiff.
[ 319 Pa. Super. Page 563]
The point was not incorporated into his instruction. During the charge, the trial judge instructed the jury as to what it should conclude if it believed one or the other of the parties, and stated that "it need [not] just find that either [appellee] was six feet off the highway or else he was on the highway." He instructed the jury that it could find that "the evidence puts [appellee] somewhere else in between" and "would put [appellant's] truck somewhere else in between." Subsequently, the jury returned a verdict for appellant.
Following the filing of post-trial motions, the trial judge granted appellee a new trial. He gave the following ...