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HUMMEL v. WOMELDORF (09/26/67)

decided: September 26, 1967.

HUMMEL, APPELLANT,
v.
WOMELDORF



Appeal from judgment of Court of Common Pleas of Perry County, Feb. T., 1964, No. 290, in case of Irene E. Hummel, administratrix of estate of George E. Hummel, deceased v. Curtis Womeldorf, trading and doing business as Ace Motor Freight, H. M. Skinner & Sons, Inc. and Robert F. Gibson.

COUNSEL

Carl Rice, for appellant.

Richard B. Wickersham, with him Richard H. Wix, and Metzger, Wickersham & Knauss, for appellees.

G. Thomas Miller, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno dissents. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: O'brien

[ 426 Pa. Page 461]

At about 1 a.m. on December 10, 1963, the decedent, George E. Hummel, employed as a truck driver for Follmer Trucking Company, was operating a tractor-trailer unit on the highway near the Borough of Liverpool, in Perry County. He was driving his vehicle on the southbound lane of a three lane concrete highway. To the west of the highway was situated a restaurant and service station.

At the same time, Robert F. Gibson was operating a tractor-trailer unit loaded with bricks. The rig was owned by Curtis Womeldorf, trading and doing business as Ace Motor Freight. The load being carried was a shipment being transported by H. M. Skinner & Sons, Inc. Gibson had pulled his rig into the restaurant and parked it on the parking area. He left the equipment unattended, with the motor running, and entered the restaurant. The rig drifted from its parking position onto the highway, in such fashion that when Hummel reached the scene, Gibson's equipment extended across the southbound lane in which Hummel was proceeding, the center lane, and a portion of the northbound lane. Hummel collided with the Gibson rig and suffered injuries which caused his death several hours later.

To recover damages resulting from Hummel's death, his widow, the administratrix of his estate, commenced an action of trespass against Womeldorf, trading as Ace, Skinner, and Gibson. A jury trial resulted in a verdict for the defendants. A new trial motion was

[ 426 Pa. Page 462]

    refused, and this appeal followed the entry of judgment on the verdict of the jury.

Appellant contends that the verdict of the jury was against the weight of the evidence; that the trial court charged erroneously on the burden of proof of contributory negligence; that the trial court erred in charging relative to the rebuttal of the presumption of due care of the decedent, inasmuch as there was no evidence to rebut the presumption; and that since there was no evidence to warrant a finding of contributory negligence, the trial court erred in submitting that issue to the jury. Appellant recognizes that no specific exceptions to the charge of the trial court were made, but contends that her general exception was sufficient, since the alleged errors in the charge were basic and fundamental. The question of when a general exception to the charge is sufficient to protect the rights of the prejudiced party is not a novel one. In Fugagli v. Camasi, 426 Pa. 1, 229 A.2d 735 (1967), we very recently considered this question. We there held that a general exception is sufficient "where the instructions omitted [or improperly included] are vital to a proper conception of the case, for such an inadequacy constitutes basic and fundamental error, . . . [citing cases]." In the instant case, a careful reading of the charge discloses no basic or fundamental error.

A fair reading of the court's charge indicates that the trial court charged the jury that if decedent's negligence contributed in any degree to the happening of the accident, appellant could not recover. The court did not, as alleged by appellant, place the burden of disproving contributory negligence on the plaintiff. The charge made perfectly clear that the burden of establishing contributory negligence was on the defendants. The court did say: "Second, the ...


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