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ELLER ET AL. v. WORK (03/31/75)

decided: March 31, 1975.

ELLER ET AL., APPELLANTS,
v.
WORK



Appeal from judgment of Court of Common Pleas of Chester County, March T., 1972, No. 71, in case of Richard Gary Eller, a Minor by and through his Father and Natural Guardian, Frank D. Eller and Frank D. Eller, in his own right v. Gatchell L. Work also known as G. Larry Work.

COUNSEL

G. Clinton Fogwell, Jr., with him John L. Lachall, and Reilly and Fogwell, for appellants.

C. Robert Elicker, Jr., with him Timothy H. Knauer, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Hoffman, J. Price, J., concurs in the result. Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 233 Pa. Super. Page 188]

The appellant, plaintiff below, contends that the trial judge committed reversible error in charging the jury on the "choice of paths" doctrine and in allowing the introduction of allegedly inadmissible hearsay testimony.

The minor-appellant, Richard Eller, age thirteen, was walking next to his brother, Frank Eller, Jr., on Isabel Lane in West Goshen Township, Chester County, at 7:00 p.m., on February 15, 1972. There are no sidewalks on either side of this suburban street and the lawns lead straight to the roadway. Frank Eller testified that he was walking on the lawns while the appellant was walking

[ 233 Pa. Super. Page 189]

    at the edge of the road. The appellee was driving in the same direction as the boys were walking and struck the appellant from behind. Appellant's brother testified that the first indication of an approaching car was the sound of squealing brakes. When he heard the brakes, appellant's brother turned and saw the appellant being struck. The brother further testified that the car was in motion at the point of impact and that the appellee's car was the only one on Isabel Lane at that time.

Anthony DiRocco, the investigating officer, testified on direct examination that in the course of his investigation he "asked who the operator of the vehicle was, and Mr. Work came forth and said he was operating the vehicle." On cross-examination, Officer DiRocco testified that the appellee told him that both boys were walking on the roadway. The appellant's objection was overruled by the trial court.

In his charge, the trial judge first defined negligence, proximate cause and contributory negligence. He then instructed the jury on the "choice of paths" doctrine, which was defined in Garvin v. Pittsburgh, 161 Pa. Superior Ct. 140, 53 A.2d 906 (1947), as follows: "It is well settled that where a person has a choice of two ways, one of which is perfectly safe and the other subject to obvious risks, and voluntarily chooses the latter and is injured, he is guilty of contributory negligence." 161 Pa. Superior Ct. at 143, 53 A.2d at 908, quoting Graham v. Reynoldsville Borough, 132 Pa. Superior Ct. 296, 300, 200 A. 681, 682-683 (1938). In general, the court's charge was extensive and contained a complete explanation of legal principles. The appellant contends, however, that the charge was improper because no evidence was adduced at trial from which the jury could infer that the appellant negligently chose a dangerous route when a safe route was available.

It is clear that the appellant could not be deemed contributorily negligent for merely ...


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