Appeal, No. 172, Jan. T., 1962, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1957, No. 835, in case of George A. Stegmuller, individually and trading as Glenolden Amoco Service, v. Howard C. Davis, Jr. Judgment reversed.
Miles Warner, for appellant.
William J. McKinley, Jr., with him Swartz, Campbell & Henry, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE EAGEN
Plaintiff-appellant sued the defendant-appellee for injuries caused by the latter's alleged negligent conduct. A jury trial resulted in a verdict for the defendant. This appeal is from the judgment entered following an order denying a new trial. The errors assigned relate to the trial judge's instructions to the jury on the issue of liability.
The case arises out of an unfortunate accident. The only witnesses to its occurrence were the party litigants. The plaintiff is the proprietor of a small automobile
service station. The defendant drove his car to plaintiff's place of business and requested that the engine or motor be inspected because it was knocking and making an unusual noise.
The plaintiff's testimony may be summarized as follows: he lifted the hood; the engine was running; the plaintiff said to defendant, "shut your engine off"; the defendant entered the automobile, seated himself and stopped the engine; the plaintiff then started to work on the fan belt which was twisted; after "nearly a minute" the defendant without any warning started the motor; one of plaintiff's fingers became engaged in the moving machinery and was amputated.
The defendant's testimony and description of the incident was substantially the same as the plaintiff's, except he testified that he restarted the motor almost instantly, or with only a pause of one or two seconds, after he shut it off. He also stated that he was not aware that the plaintiff had begun work on the motor during the interval.
It is our conclusion that the trial judge inadvertently erroneously instructed the jury in important respects and that justice requires that a new trial be granted. For instance, he told the jury: "The burden rests upon the plaintiff to satisfy you by the weight of the believable evidence in the case that the accident was caused by the carelessness on the part of the defendant and not contributed to by any carelessness or negligence on the part of the plaintiff.*fn1 If you find the plaintiff, by his own carelessness contributed to the accident and the injuries, the plaintiff cannot recover from the defendant." This, of course, is not the ...