Appeal, No. 94, March T., 1959, from judgment of Court of Common Pleas of Armstrong County, Dec. T., 1951, No. 91, in case of Calvin E. Miller, deceased et al. v. Kenneth Derwood Montgomery, administrator of the estate of James H. Montgomery, deceased. Judgment reversed. Trespass. Before GRAFF, P.J. Verdict entered for defendant; plaintiff's motion for new trial dismissed and judgment entered. Plaintiff appealed.
W. Davis Graham, for appellant.
Robert E. Ashe, with him Ashe & Ashe, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
This action in trespass was instituted by Calvin E. Miller against Kenneth D. Montgomery, Administrator of the Estate of James H. Montgomery, deceased.
The evidence is necessarily meager in that Montgomery, who was the operator of the motor vehicle in which Miller was a passenger, was killed in the accident and Miller himself died prior to trial. No eyewitness was available. However, plaintiff did introduce the testimony of three persons who came upon the scene immediately after the accident. From their testimony it appears that Miller and Montgomery were employees of the Pennsylvania State Highway Department. They quit work at 4:30 p.m. on September 28, 1950 and started toward their homes in Kittanning upon State Highway Route 85 in a pick-up truck owned and operated by Montgomery. Miller was sitting beside him when they left their work project. Troutman and Fair, who were fellow workmen of Miller and Montgomery, testified that they were also proceeding upon the same highway toward Kittanning and came to where the highway crosses Cowanshannock Creek. At this point the road
curved to the left in the direction in which they were proceeding and the berm was observed to be disturbed or torn up. The guard rail at or near the bridge was broken or bent, and Montgomery's truck was observed in the creek, lying on its roof, with its wheels in the air. Miller was pinned under the truck and only released in time to prevent his being drowned, but Montgomery was dead when taken from the wreckage. The narration of these circumstances was confirmed by Dr. Stitt, who was also proceeding along the same highway and happened upon the scene at about the same time. That is all of the testimony since defendant introduced no evidence. The court, which, at the close of plaintiff's evidence, had refused defendant's motion for a compulsory non-suit, submitted the case to the jury which returned a verdict in favor of defendant on which judgment was entered.
Plaintiff urges, on appeal, that the trial court committed reversible error in that: (1) the charge to the jury placed an improper emphasis on the burden of proof upon plaintiff; (2) in charging at all on the question of contributory negligence of plaintiff; and, (3) it incorrectly affirmed two points for charge requested by defendant. These allegations will be considered seriatim.
The plaintiff contends that the lower court erred in placing undue emphasis on the burden of proof upon him because of a failure to properly apply the doctrine of exclusive control. The doctrine of exclusive control, however, has no application to the facts of the instant case. As we are reversing for other error, we feel that it is incumbent upon us to direct the trial judge on retrial to refrain from any discussion of such doctrine.
Plaintiff next alleges that the trial court committed reversible error in charging on contributory negligence. The court said: ...