Zangrando v. Sipula

EAKIN, J.: ¶ 1 Appellee and two little dogs were walking down the street, tending to business as they went, but soon they were to meet ¶ 2 Appellant, who this wintry day was driving toward the pair; their mistress reined them to a stop along the thoroughfare. ¶ 3 Angel and Autumn were their names, one white, one apricot; to walk beside her on a leash was their happy lifelong lot. ¶ 4 The poodles waited for the car, and watched as it drew near, thinking there was naught at all to cause them any fear, ¶ 5 For often cars would pass them by, but this was no wayfarer - the car begin to veer toward them and caution turned to terror. *75 ¶ 6 The car was coming much too close, something inside told her; the next thing Mrs. Zangrando knew, a poodle flew over her shoulder. ¶ 7 To appellee this was nothing short of an unmitigated disaster; the wingless Angel’d taken flight and ascended quickly past her. ¶ 8 In this brace of miniature poodles, neither one wide nor tall, one may have been named Autumn, but ‘twas Angel took the fall. ¶ 9 The impact could have killed the pup but Angel would survive; a doctor of the veterinary kept the dog alive. ¶ 10 The bill for Angel’s treatment, though, was anything but small, and appellee felt that in the end, appellant should pay it all, ¶ 11 So she filed this civil action in Allegheny county court seeking eleven hundred fifty-five dollars for the nearly fatal tort. ¶ 12 The court sat with no jury, and after expeditious trial, held appellee was right, which caused the court to promptly file ¶ 13 The order which appellant claims was entered quite in error; he suggests the trial judge should have treated him much fairer. ¶ 14 Four issues now he raises, as he asks us to abort the finding of the learned and distinguished county court. ¶ 15 When looking at a trial court’s verdict, our standard of review 1 requires we find legal error before granting trial anew, ¶ 16 Or find abused discretion that is clear and manifest; with this unquestioned ruler we put his issues to the test. ¶ 17 First he says that appellee was standing in the road in blatant violation of this Commonwealth’s Vehicle Code, ¶ 18 So contributory negligence the trial court should have found precluding his obligation to pay for damaging the tiny hound. ¶ 19 Appellant points us to Code Section 3544, 2 which provides, indeed, pedestrians are required to do more ¶ 20 Than choose just any path while they are going down the way; when in the street one must walk the left, and off the road should stay. ¶ 21 But appellee gave testimony she walked upon the “berm,” and while the Vehicle Code has not defined that term *76 ¶ 22 The eases hold a berm is not highway or street per se; it’s a border visibly distinct from the remainder of the way. 3 ¶ 23 Appellee was toward the left side curb, and just about as far as she could be from the center of the roadway and the car. ¶ 24 We find that being on the berm, when she could do no more does not make a violation of 3544. ¶ 25 We find no negligence in staying off the neighbor’s grass; the road was fifteen feet in width, with room to safely pass. ¶ 26 Absent violation of this cited traffic section we agree with the refusal of the judge to make a connection ¶ 27 Between her fixed location and per se contributory negligence, notwithstanding appellant’s version of the story. ¶ 28 Appellant however argues that because he hit the dog while driving in the roadway, Angel must be the road hog. ¶ 29 But he didn’t testify he saw the dog dash to the street, yet he’d have this Court assume such caused the dog and car to meet. ¶ 30 Even if the poodle strained to reach the leashes’ end, appellant veered toward Angel, testimony we may not amend. ¶ 31 It’s a credibility finding, and we are an appellate court; such findings, if supported, bind us, despite his strong retort. 4 ¶ 32 If one looks very closely, the sum of appellant’s dissembling is he saw no impact ‘til Angel rose, an extra point resembling. ¶ 33 The collision he says he didn’t see, a fact there’s no denying, so he can’t tell if Angel moved before he sent her flying. ¶ 34 Appellant next suggests the court in error applied the rule of assured clear distance to find that he was fully liable ¶ 35 This is a venerable doctrine that is very far from moot, 5 and quite appropriate to the facts giving rise to this dispute. ¶ 36 The court gave to this principle its proper application; the issue raised, we find, lacks a meritorious foundation. ¶ 37 Besides, we can’t find where he’s raised this in a post-trial motion; *77 the issue’s waived, no matter how appealing the notion. 6 ¶ 88 Next, he claims he was the victim of a sudden emergency, a doctrine 7 which absolves some torts, and he should be set free ¶ 39 Of any obligation for the money owed the vet, but the record shows the elements of this concept are not met. ¶ 40 This doctrine’s application is with unforeseen events when normal care’s impossible in any real sense. ¶ 41 Unexpected perils do from time to time arise whose suddenness may obviate the fault in our law’s eyes. ¶ 42 But while appellant touts this rule, no matter how it’s styled he needs to have us find the dog was like the darting child, ¶ 43 And there simply is no evidence that Angel did such darting before the car ran into her, trajectory imparting. ¶ 44 The poodles were not proved the source of sudden immediate peril; their actions did not put him over any decisional barrel. ¶ 45 The poodles and the appellee had surely come to a halt; they didn’t appear suddenly; the impact wasn’t their fault. ¶ 46 This claim of exigency he makes further begins to unravel when one but thinks about appellant’s stated rate of travel. ¶ 47 15 miles an hour he claims as his maximum rate of speed, quite a cautious, prudent rate, not very fast indeed, ¶ 48 Not fast enough to trouble him or force a quick decision; it shows, had he been paying heed, there’d have been no collision; ¶ 49 For he admits he saw the dogs as he approached the scene, and didn’t know he’d struck a pup ‘til Mrs. Zangrando keened. ¶ 50 It’s also hard to quarrel here with what the trial court said: That speed’s not fast enough to launch a poodle overhead. ¶ 51 The doctrine’s just not applicable, factually, in this case; Thus the dependent argument is similarly off base. ¶ 52 In sum, assured clear distance creates duty when one drives; the emergency doctrine excuses it should sudden peril arise. ¶ 58 Appellant would skip the former rule, and apply only the latter, *78 which seems to us as illogical as dieting to get fatter. ¶ 54 This argument is not so far from the dog in the fabled manger; were we to find as appellant asks, we would create a danger ¶ 55 For everyone who find the needs of their beloved pet makes them walk within the confines of their street, and yet ¶ 56 They cannot be fair game for cars that drive that very street (and cars will always win the ties, when pedestrian and auto meet). ¶ 57 Be it interstate or neighborhood, drivers get no free shot at things they may encounter, whether in the street or not. ¶ 58 So while counsel raises issues that are worthy and well taken in the end we find the effort to apply them here’s mistaken. ¶ 59 We must conclude the issues raised do not warrant a new trial and all that we may offer now is this respectful rhymed denial. ¶ 60 Judgment affirmed. Footnotes [1] Stonehedge Square Ltd. Pshp. v. Movie Merchants, 454 Pa.Super. 468, 685 A.2d 1019, 1022 (1996), alloc. granted in part, 548 Pa. 228, 696 A.2d 805 (1997). [2] 75 Pa.C.S. § 3544(b)-(c). [3] Masters v. Alexander, 424 Pa. 65, 225 A.2d 905, 910 (1967). [4] Commonwealth v. Cappellini, 456 Pa.Super. 498, 690 A.2d 1220, 1224 (1997). [5] Lockhart v. List, 542 Pa. 141, 665 A.2d 1176, 1180 (1995). [6] Kraus v. Taylor, 710 A.2d 1142, 1146 (Pa.Super.1998). [7] Levey v. DeNardo, 555 Pa. 514, 725 A.2d 733 (1999).