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Petrole v. George A. Fetter Inc.

decided: May 22, 1969.

PETER J. PETROLE, APPELLANT,
v.
GEORGE A. FETTER, INC. AND GEORGE CASTIMORE V. LEWIS YEZARSKI



Kalodner, Ganey and Van Dusen, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

Plaintiff appeals from a January 24, 1968, judgment in this action which was rendered upon a jury verdict in favor of the original defendants, George A. Fetter, Inc. and George Castimore, arising out of personal injury sustained in a motor vehicle collision, and which dismissed the third-party action against Lewis Yezarski. Plaintiff was a passenger in an automobile operated by the third-party defendant, Lewis Yezarski, at the time he suffered the injuries. The Yezarski automobile was traveling in a southerly direction on Route 309 between Hazleton, Pa., and Tamaqua, Pa., during the daylight hours of October 25, 1962, when it struck a tractor-trailer which was owned or leased by George A. Fetter, Inc. and driven by George Castimore. The Fetter vehicle had been proceeding in a northerly direction on Route 309 and was struck by the Yezarski car as the tractor-trailer was negotiating a left turn onto Route 45. Traffic at the intersection of the two routes was directed by a signal which was green at the time the respective vehicles entered the intersection.*fn1 Defendant Castimore had an unobstructed view of from one-half block to 560 feet in the direction from which Yezarski's car was approaching.*fn2

Plaintiff sued Castimore and his employer; they joined Yezarski as third-party defendant. Plaintiff made no direct claim against Yezarski. The trial judge submitted interrogatories to the jury at the close of the trial and they found that the original defendants were not negligent, but that third-party defendant, Yezarski, was negligent and that his negligence was the proximate cause of the collision.

The plaintiff's primary contentions are that he is entitled to a new trial because the instructions to the jury were inadequate and because the jury's verdict was coerced by the trial judge.

Plaintiff alleges that the trial judge erred in failing to charge on the specific duties of care required of vehicle operators by the Motor Vehicle Code and case law which sets forth the applicable duties, as described in the plaintiff's Points for Charge;*fn3 plaintiff further contends, inter alia, that the court coerced the jury and committed error when it recalled them into the courtroom at 6:15 P.M., having had no dinner, and told them they must continue their deliberations until they reached a verdict. They returned 22 minutes later with their verdict.

We reverse the judgment of the District Court and hold that a new trial is required because of inadequate and prejudicial instructions given the jury by the trial judge.

The instructions to the jury were inadequate because they failed to include any explanation of the specific duties imposed upon Castimore and Yezarski by the Motor Vehicle Code of Pennsylvania and the relevant case law.*fn4 The instructions on negligence were too broad, mentioning only the "reasonable man standard," and disregarding the duties imposed by the Code and cases.*fn5

In instances, as here, where the legislature has fixed a standard of care designed to protect people in the plaintiff's position or to prevent the type of accident which occurred, it is error for the court to fail to explain that standard in the charge to the jury. See Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409 (3rd Cir. 1967). Cf. Richardson v. Gregory, 108 U.S.App.D.C. 263, 281 F.2d 626, 629 (1960). The above principle is particularly applicable here where the trial judge was or should have been, alerted by plaintiff's Points for Charge that both the Motor Vehicle Code and case law articulate duties incumbent upon the defendant's driver when executing a left turn.*fn6 Since the plaintiff excepted to the court's failure to charge these duties, he properly preserved his right to appeal this error.*fn7 In this case, the charge was so general, despite plaintiff's specific requests, that it could not give the jury adequate assistance in fixing the standards of care required under the circumstances. See Ryan v. United Parcel Service, 205 F.2d 362 (2nd Cir. 1953).

The trial court also erred in recalling the jury to inform it that deliberations would continue until a verdict was reached.*fn8 Ordinarily, instructions to the jury should not be given in the absence of counsel. See Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S. Ct. 435, 63 L. Ed. 853 (1919).*fn9 However, it is not necessary to reach the issue of absence of counsel at the time of the instruction. Cf. Arrington v. Roberts, supra. On this record we hold that this instruction was coercive and constituted reversible error.*fn10 At 6:15 P.M., without any explanation that food would be made available to the jurors, the court directed this jury to continue deliberations until they reached a verdict, telling them that the case was "not complicated" nor "very difficult", though in the original charge the court termed the case "not an easy case" and "rather complicated".*fn11

For the foregoing reasons, the judgment of the District Court will be reversed and the case ...


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