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NELSON v. BARCLAY MOTORS (07/01/64)

July 1, 1964

NELSON, APPELLANT,
v.
BARCLAY MOTORS, INC.



Appeal, No. 186, Jan. T., 1964, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1962, No. 886, in case of John Nelson v. Barclay Motors, Inc. Judgment affirmed.

COUNSEL

Garland D. Cherry, with him Kassab, Cherry, Curran & Archbold, for appellant.

James C. Brennan, with him Hinkson & Cantlin, for appellee.

Before Bell, C.j., Cohen, Eagen, O'brien and Roberts, JJ.

Author: O'brien

[ 414 Pa. Page 633]

OPINION BY MR. JUSTICE O'BRIEN

Appellant suffered personal injuries in a fall on appellee's premises. Appellant's action of trespass resulted in a jury verdict for appellee. This appeal

[ 414 Pa. Page 634]

    followed the entry of judgment on the verdict of the jury, after the denial by the court below of appellant's motion for new trial.

Appellant contends that the trial court erred in its charge by: (1) instructing the jury that it could find contributory negligence in appellant's own case; (2) misleading the jury into a belief that appellant had the burden of disproving contributory negligence; (3) failing to define contributory negligence and (4) failing to instruct the jury that the burden of proving contributory negligence was on appellee.

Appellant relies upon Hepler v. Hammond, 363 Pa. 355, 69 A.2d 95 (1949), in support of his position with regard to the instruction concerning contributory negligence in appellant's case. In Hepler, we held that such an instruction is improper where a plaintiff's case contains no evidence from which such a finding could be made. Here, appellant's case in chief does contain evidence from which an inference of contributory negligence could be reached, and the instruction in this regard was proper.

Appellant's arguments with regard to the trial court's allegedly placing the burden of disproving contributory negligence on him are not supported by the record. A careful review of the entire charge reveals that the trial court did not fall into the error of misplacing the burden of proof of contributory negligence. In Brown v. Jones, 404 Pa. 513, 172 A.2d 831 (1961), we held it to be prejudicial error where the trial court charged that "'... the plaintiff is obliged to show you a case which is free of contributory negligence ...'". In Stegmuller v. Davis, 408 Pa. 267, 182 A.2d 745 (1962), we granted a new trial where the tenor of the entire charge placed the burden of ...


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