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AUGUSTUS J. PAPANDREA v. BARRY J. HARTMAN (02/26/86)

filed: February 26, 1986.

AUGUSTUS J. PAPANDREA, SR. AND GERALDINE I. PAPANDREA, HIS WIFE, APPELLANTS
v.
BARRY J. HARTMAN



Appeal from the Judgment of Sentence of the Court of Common Pleas, Civil Division of Dauphin County at No. 570 S 1983.

COUNSEL

John J. Krafsig, Harrisburg, for appellants.

Richard B. Swartz, Harrisburg, for appellee.

Wickersham, Cirillo and Johnson, JJ.

Author: Wickersham

[ 352 Pa. Super. Page 164]

This is an appeal from the judgment of the Court of Common Pleas of Dauphin County, entered on a jury's verdict in favor of defendant-appellee, Barry J. Hartman, and against plaintiffs, Augustus J. Papandrea, Sr. and Geraldine I. Papandrea, appellants, in a trespass action growing out of an automobile collision. We reverse.

Viewing the evidence in a light most favorable to the nonmoving party, defendant-appellee, the following appears of record: At approximately 3:30 P.M. on the 28th of May, 1982, appellee was driving his automobile on North Progress Avenue in Susquehanna Township, Dauphin County. It was not dark, and Hartman was moving at a reasonable rate of speed since the roadway was wet.

Hartman was approaching an intersection and could see, some 600 feet ahead, that another vehicle had stopped and its driver (appellant herein) was waiting for the traffic signal to change in his favor. The other vehicle was stationary in the left turning lane. Hartman slowed to enter the turning lane and began to apply his brakes. Hartman was traveling at less than 5 miles per hour, when his brakes allegedly failed, causing his vehicle to strike that of appellants.

[ 352 Pa. Super. Page 165]

Appellant, Augustus Papandrea, was rendered totally disabled from the collision.

The case proceeded to trial and a jury found for Hartman. Post-verdict motions were denied and judgment was entered for appellee and against plaintiffs-appellants. This appeal timely followed.

On appeal, appellants present five issues for our review.*fn1 We address the first of appellants' issues, which centers on the following relevant portion of the instruction to the jury by the court below:

[ 352 Pa. Super. Page 166]

[THE COURT]: Now, I want to point out to you some of the law that is specifically involved in a situation of this type. Now, remember that I did tell you that recovery is based on negligence.

The Defendant has pointed out in his request to the Court that this Defendant cannot be negligent because he asserts that the Defendant had brake failure and because of the brake failure the Defendant was not involved in any act of negligence. There is some law to this effect that when one finds himself in a position of danger that is not the result of his negligence, he is not responsible if he makes a mistake in judgment in getting out. An honest exercise in judgment is all that is required of him even if he could have done better had he had time to deliberate.

There is also some law to the effect that where there is mechanical failure such as a brake failure, and the party neither knew of it nor had reason to know that his mechanical failure would take effect and if in this particular case if you find that the action of the Defendant from the time of the brake failure until the moment of impact were not negligent, then of course the Plaintiff -- excuse me, the Defendant, would be entitled to the invocation of this doctrine which we refer to as sudden emergencies.

On the other hand, there is a lot of law which is favorable to the Plaintiff and this has been referred to by the Plaintiff as the assured clear distance ahead rule. That rule reads as follows:

Any person having a vehicle on the highway shall drive the same at a careful and prudent speed, not greater than nor less than is reasonable and proper, having due regard to the traffic surface and width of the highway and of any other restrictions or conditions when and where existing; and no person shall drive any vehicle upon a highway at ...


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