The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: September 8, 2008
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
City of York Police Officer Barry L. Bloss, Jr. (Officer), the York City Police Department (Department) and the City of York (City) (collectively, Appellants) appeal from the order of the Court of Common Pleas of York County dated March 13, 2008, granting Appellees, Susan Lahr (Driver) and Francis Lahr, a new trial limited to the issue of contributory negligence. We affirm.
Driver filed suit alleging personal injuries sustained when Officer exceeded the speed limit while operating a police vehicle (car) in the wrong direction on a one-way street that collided with Driver's vehicle (van) in an intersection. A jury trial was held in the Common Pleas Court of York County, Pennsylvania (trial court) resulting in a verdict that Officer was not negligent. The trial court granted Driver's post-trial motion for a new trial limited to the issue of contributory negligence. Appellants appeal. We affirm as modified.
On May 10, 2003, shortly before eight o'clock A.M. Driver, a thirty-five-year-old mother of three teenage girls, was operating her van on her way to work traveling west on East Maple Street (Maple Street) near its intersection with Duke Street with her windows down and her radio on.*fn1 As Driver approached the stop sign facing her before reaching Duke Street, she noticed an oncoming police cruiser across the intersection in the next block of Maple Street, going east, the wrong way. She may have seen the emergency lights on that cruiser, but heard no siren. R.R. 67a, 143a. The police cruiser turned to its right, causing him to travel south, the wrong way, on Duke Street. Driver looked to her left (where traffic should have been approaching her from Duke Street) and watched the police cruiser until it was out of sight. R.R. 67a.
Driver testified that she stopped at Duke Street but because of vehicles parked to her left on Duke Street, she was unable to see northbound traffic from Duke Street until she was in the intersection. She had to keep inching out into the intersection a little bit at a time in order to see the oncoming traffic, in order to safely transverse the intersection. She kept looking to the left to see if there was any traffic coming. She heard no siren. R.R. 70a, 71a. When she saw that it was clear, she proceeded through the intersection slowly. Driver stated that she had traversed this intersection daily for three years on her way to work and did not look to her right because Duke Street, being a one-way street, only permitted traffic from her left. At this point, Officer's vehicle, traveling south on Duke Street, came from Driver's right and struck her van before she cleared the intersection.
Officer testified that while on duty that same morning, he was operating a police car in a southerly direction on South Duke Street (Duke Street), responding to an emergency call near the old Courthouse in the City of York, an area with many one-way streets. R.R. 241a, 251a. He was in pursuit of a suspected gunman, had the emergency lights activated and was using the siren intermittently at intersections. He admitted that he was exceeding the posted speed limit (by going thirty miles per hour) and was traveling the wrong way on a oneway street. R.R. 281a, 282a. Officer saw Driver continuously looking to her left, applied the brakes and his vehicle struck the van close to the rear axle area or tire on the passenger side. Officer admitted that if he were going slower it was possible that he could have stopped in time and avoided the accident. R.R. 288a. Officer maintained that he was traveling 10 to 15 miles per hour at impact. There was no evidence of the Officer's vehicle slowing or stopping, such as skid marks, before impact. Id.
An eye witness to the events that morning, Ms. Cheri Brown, testified that she heard police sirens coming from many different directions, looked in all directions to see what was happening, and saw two police cars on Duke Street, one traveling in the correct direction and one traveling in the wrong direction on the one-way street. She saw the Officer's car to her right, with its lights and siren on, traveling in the wrong direction on Duke Street. She estimated the Officer's car to be traveling at approximately 40 to 50 miles per hour. It did not appear as if the Officer's car had a chance to stop before impact. R.R. 576a.
Witness Ismel Castillo testified that he saw two police cars that morning. The first police car had its lights and siren on; the second one had no siren on and he could not remember if it had its lights on. R.R. 165a.
The trial court instructed the jury on negligence, contributory negligence, the necessity for any negligence to be the factual cause of the injuries to Driver and the applicable sections of the Motor Vehicle Code (Vehicle Code) including the emergency vehicle doctrine.*fn2 R.R. 488a, 489a. Under the emergency vehicle doctrine, the driver of an emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, may exercise special privileges to exceed speed limits and disregard directional regulations, subject to the conditions stated in Section 3105 of the Vehicle Code, 75 Pa.C.S. §3105.*fn3
The trial court also instructed the jury to decide whether one or both individuals, Officer and/or Driver, were negligent per se by violating any of the statutes referred to in the jury's instructions that defined the duty of care of the various individuals involved in this particular incident. R.R. 490a.
The trial court refused Driver's request to instruct the jury that the operator of an emergency vehicle claiming an exemption from the normal rules of the road, has the burden of proving that he met each applicable condition set forth in the Vehicle Code. The trial court also refused Driver's requested instruction that Appellants failed to prove that Officer had met the conditions necessary to invoking the special privileges regarding speed and directional movement.*fn4
The jury rendered a verdict that Officer was not negligent.*fn5 The trial court summarily denied Driver's oral motion for judgment notwithstanding the verdict (J.N.O.V.). The trial court heard Driver's post-trial motions on October 7, 2007. Driver requested the trial court: a) to order a new trial pursuant to Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) No. 227.1; b) to set aside the jury verdict; c) to order and direct a new trial; d) to order and direct that the trial be limited to the ...