Appeal from order of Court of Common Pleas of Lehigh County, Jan. T., 1970, No. 303, in re Agnes J. Hunger, Administratrix of the estate of Marcus Hunger, deceased v. George F. LaBarre.
E. Drummond King, with him King, McCardle, for appellant.
Howard N. Stark, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J.
[ 224 Pa. Super. Page 509]
Appellant contends that the lower court erred in awarding the appellee a new trial on the ground that the trial judge improperly instructed the jury on the question of contributory negligence.
On December 7, 1968, the Appellant, George F. LaBarre, was proceeding in his automobile along East Susquehanna Street in Allentown. When the appellant's vehicle reached a point two hundred feet east of the intersection of East Susquehanna and South Franklin Streets, the right front corner of his car came into violent contact with a pedestrian, appellee's decedent Marcus Hunger. As a result of this collision, Hunger sustained injuries which caused his death three days later.
Following the presentation of the evidence in the trial before the lower court, the Judge charged the jury: "Now, contributory negligence is conduct for which the plaintiff is responsible, amounting to a breach of duty which the law imposes upon persons to protect themselves from injury, and which concurring and co-operating with the negligent acts of the defendant contributes to the injury of which the plaintiff complains. Any plaintiff who is guilty of contributory negligence cannot recover under the law of Pennsylvania no matter how negligent the defendant may have been. If the plaintiff was guilty of negligence which contributed to the happening of his own injury in any degree, however slight it may have been, he cannot prevail in a suit for damages arising from that accident. The test is whether the act or acts alleged as constituting negligence contributed in any degree to the production of the injury to the plaintiff." (Emphasis added.)
Pennsylvania courts have long held that to bar recovery a plaintiff's negligence must be a proximate cause of his own injury. Argo v. Goodstein, 438 Pa. 468,
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A.2d 783 (1970).*fn1 Thus, a jury charge to the effect that plaintiff's contributory negligence will bar his recovery even though it is not a proximate cause of his injury is erroneous. Cebulskie v. Lehigh Valley Railroad, 441 Pa. 230, 272 A.2d 171 (1971). "The rules which determine the causal relation between the plaintiff's negligence and the injury are the same as those determining the causal relation between defendant's negligent conduct and the injury sustained by others. There is no reason in law or in logic which would dictate a distinction between these two situations. In both instances it was necessary to find that the negligence was the proximate cause of the accident. That is, if the defendant's negligence was not the proximate cause of the injury then he cannot be held accountable, and likewise if plaintiff's negligence was not a proximate cause it will not bar his recovery." McCay v. Philadelphia Electric Company, 447 Pa. at 494-495, 291 A.2d 759 (1972). (Emphasis added.) (Footnote omitted.)
In McCay, the trial judge charged the jury as follows: "'Any plaintiff who is guilty of contributory negligence cannot recover under the law of this State, no matter how negligent the defendant may have been. If a plaintiff was guilty of negligence which contributed to the happening of his own injury in any degree, however slight it may have been, he cannot prevail in a suit for damages arising from that accident. The test is whether the act or acts alleged as constituting negligence contributed in any degree to the production of the injury.'" 447 Pa. 490, 495-496. This portion of the McCay charge is identical to a portion of the ...