Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
In this diversity personal injury case the two car automobile collision which gave rise to the cause occurred on Route 219 in the vicinity of Ridgway, Pennsylvania, on August 15, 1959. Pennsylvania law is therefore applicable.
Robert Aiello, the plaintiff's ward, was returning from Kane, Pennsylvania, where he had picked up two amusement machines his family owned. With him was John Cappiello. It was about 1:30 A.M. and a haze had settled over the general area with patches of dense fog at particular points. The highway was two-laned and from Aiello's point of view, a bank or gentle slope rose on the left. Several houses lined the right side.
Approaching them, and traveling in a northerly direction, was a tractor-trailer driven by Howell Wilson, who was on the business of the defendant, North American Van Lines, Inc. Behind the truck driven by Wilson, was a car operated by Paul Mowry. In Mowry's car was passenger John Newell.
All vehicles were proceeding at moderate speeds and visibility was limited. From the evidence of the policemen who came to the scene, with reference to vehicle marks, point of impact, etc., and the testimony of Newell, Cappiello, Mowry and Wilson, a conflict arose as to how the accident occurred*fn1 The point of impact apparently was localized several inches to the right of the center line in the lane facing north, i.e., the lane in which the North American Van truck was traveling.
Some testimony tended to show that Aiello, after negotiating a bend in the highway, discovered the defendant's truck in his lane, and according to Cappiello, Aiello turned "the car to his left to avoid the accident." [N.T. 12]. Plaintiff's vehicle apparently crossed in front of defendant's and struck the North American truck on its right front, and then veered into the bank at the side of the road. On the other hand, Wilson said that he was in his proper lane, that he had turned his trailer to his left to get out of the way of Aiello's truck, which was in the wrong lane*fn2 The case was submitted to the jury upon the court's charge and a verdict was returned for the defendant.
Plaintiff filed a motion for a new trial protesting a "ruling" of the court during trial and the instructions given by the court to the jury. From the denial of that motion, plaintiff appeals.
The first contention is that the trial judge improperly instructed the jury on the subject of unavoidable accident. We, of course, must examine the charge as a whole, and not isolated portions out of their setting. DeMichiei v. Holfelder, 410 Pa. 483, 486, 189 A.2d 882 (1963); Walter J. Scanlan & Son v. Sherbine, 382 Pa. 376, 114 A.2d 900 (1955); Thomas v. Mills, 388 Pa. 353, 130 A.2d 489 (1957); Parker v. Yellow Cab Co., 391 Pa. 566, 137 A.2d 317 (1958). In the portion of the charge of which the appellant complains*fn3, the judge was instructing the jury on the burden of proof. He first properly charged that the mere happening of an accident does not mean that someone was negligent. Lesoznski v. Pettsburgh Railways Co., 409 Pa. 102, 185 A.2d 538 (1962); Zilka v. Sanctis Const., Inc., 409 Pa. 396, 186 A.2d 897 (1962); DiGiannantonio v. Pittsburgh Railways Co., 402 Pa. 27, 166 A.2d 28 (1960); Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961). He went on to say that this accident could have happened without negligence, and the burden was on the plaintiff to show that his injuries were caused by the defendant's negligence. Each party claimed the other was negligent and the liability issues framed at pre-trial were: Was the Defendant negligent? Was the Plaintiff contributorily negligent? Unavoidable accident was not raised as a defense by the defendant*fn4
On these issues, each party must carry his burden. The plaintiff cannot merely claim he was not negligent and therefore the defendant was. As we said in Nash v. Raun, 149 F.2d 885, 888 (3 Cir. 1945), a situation factually similar, "the mere fact that there was an accident and that the plaintiff was not himself negligent, does not per se, mean that the defendant must have been negligent." See also Sajatovich v. Traction Bus Co., 314 Pa. 569, 172 A. 148 (1934).
Basic to a favorable determination of these issues of negligence is the necessity that each party sustain his burden of proof. In rendering a comprehensive charge on burden of proof the court necessarily will speak of principles equally applicable to a charge of unavoidable accident. Both affirm that without negligence on the part of the defendant, the plaintiff is not entitled to a verdict. Yet they are not the same. The gist of the burden of proof charge is that the plaintiff must show that defendant's negligence was responsible for his injury. The gist of the unavoidable accident charge is that some circumstance or condition so affected the actions of the parties who at all times were exercising due care, that they could not avoid an accident*fn5 See Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513 (1935).
Appellant characterizes the charge before us as an instruction on unavoidable or inevitable accident*fn6 But, there was no specific charge of the kind that was present in Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R.2d 1 (1958), upon which appellant relies*fn7 Nowhere did the court use the terms of art "unavoidable" or "inevitable." Nowhere did the trial judge outline a clear alternative available to the jury beyond the issues of contributory negligence and negligence.
Underlying the plaintiff's complaint that the judge charged unavoidable accident, is the assertion that he injected something into the trial that did not belong there. It is less a question whether the judge charged unavoidable accident than it is whether in charging burden of proof, proximate cause or concept of negligence, he brought into issue to the prejudice of the plaintiff, a factor not raised by the evidence. The questions pleaded were negligence and contributory negligence. On those the court could and should charge the governing rules for which there was evidentiary support. If the facts called for it, the court might have been forced to charge emergency doctrine, res ipsa loquitur, or exclusive control. On the facts present in this trial the court could very well have charged unavoidable accident.
The decisions cited by appellant holding that a charge of unavoidable accident was prejudicial merely stand for the proposition that if the facts brought out by the evidence lead irrevocably to the conclusion that one or the other was negligent, then a charge of unavoidable accident would be misleading and prejudicial. In Atkinson v. Roth, 297 F.2d 570, 574 (3 Cir. 1961), the court said, "[the] evidence in the case demonstrates that either driver was responsible, or both were. Indeed, neither contended below that the accident happened by reason of any factor other than the negligence of the other."*fn8 Appellant contends that this is analogous to the circumstances before us. We disagree. The district judge of necessity alluded to the factor of fog, which was clearly evident from the testimony. In the case of Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R. 1, 8 (1958), which prompted an excellent annotation ...