Appeal, No. 56, March T., 1956, from judgment of Court of Common Pleas of Butler County, June T., 1952, No. 125, in case of Hazel G. Black et vir v. A.E. Troutman Company. Judgment affirmed.
Lee C. McCandless, with him M.D. Furman, for appellants.
Luther C. Braham, with him Darrell L. Gregg, Richard B. Kirkpatrick, Norman D. Jaffe and Galbreath, Braham, Gregg & Kirkpatrick, for appellee.
Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
This action of trespass arises out of injuries suffered by wife-plaintiff when struck by the door of defendant's elevator as she alighted therefrom. The jury returned a verdict for the defendant. Plaintiffs' motion for new trial having been refused, they appeal and assign as error portions of the court's charge.
Wife-plaintiff went to defendant's store to make purchases, and ascended from the first to the third floor by means of an elevator operated by a female employe of defendant. As she was alighting the door was released and struck and injured her. Plaintiffs contended, and sought to prove, that the accident resulted solely from the negligence of the employe in releasing her grasp on the door before the wife-plaintiff was safely out of the elevator. The defendant, on the other hand, offered proof that the wife-plaintiff "bumped" the employe's hand in such manner that, as a result thereof, she released her grasp on the door.
In determining whether a court's instructions to the jury are erroneous we must consider that charge as a whole, and if it is not misleading we will not reverse, even though there be some inaccuracies or misstatements. Error cannot be predicated upon isolated excerpts if, when read with the remainder of the charge, a true and correct charge is revealed: Scanlan & Son v. Sherbine, 382 Pa. 376, 379, 380, 114 A.2d 900. So considered, the instant charge was a proper one.
Plaintiffs complain that the court erred in not explaining to the jury that the burden shifted to defendant to show how the injury occurred. But after charging as to the law of negligence and contributory negligence, the court unequivocally instructed the jury that that burden rested with defendant. It declared that the plaintiff was "aided ... by a presumption of negligence similar to that arising in the case of a common carrier." (See McKnight v. S.S. Kresge Co., 285 Pa. 489, 492, 132 A. 575). Near the end of its charge it stated: "I say to you again that the law given to you by the Court now is the law of the case and will remain so until stated otherwise by our Appellate Courts ... where a passenger is injured ... by the carrier, or its employee, ... in the operation of the
elevator, ... the burden of proof*fn1 is upon the carrier ... to show that such injury did not result from its negligence or the negligence of its employee." (Italics supplied). Actually the burden of proving negligence rested with plaintiffs, who were aided by the presumption. It was defendant's duty then to explain or show how the accident ...