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DELP v. HEATH ET AL. (06/24/75)

decided: June 24, 1975.

DELP, ET UX., APPELLANTS,
v.
HEATH ET AL.



Appeal from judgment of Court of Common Pleas of Butler County, Sept. T., 1972, No. 149, in case of Weldon E. Delp and Virginia M. Delp v. Ivan T. Heath and Mushroom Transportation Co., Inc.

COUNSEL

Harold F. Reed, Jr., with him Morgan H. Sohn, William C. Robinson, and Reed, Sohn, Reed & Kunselman, and Henninger & Robinson, for appellants.

Lee A. Montgomery, with him Galbreath, Braham, Gregg, Kirkpatrick, Jaffe & Montgomery, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Van der Voort, J. Watkins, P.j., joins in this dissenting opinion.

Author: Hoffman

[ 234 Pa. Super. Page 608]

Appellants contend that one sentence of the lower court's charge concerning contributory negligence so prejudiced their case as to constitute reversible error.

This case arose as the result of a collision between an automobile driven by the wife-appellant and a tractor-trailer truck driven by appellee Ivan T. Heath, an employee of appellee Mushroom Transportation Co., which occurred on Slippery Rock Road in Butler County at approximately 1:40 p.m. on August 4, 1970. It appears that the wife-appellant entered the left lane of the highway and was attempting to pass appellee Heath's truck at the same time that Heath was attempting to turn left into the driveway of the Cooper Brothers Sand & Gravel plant. At trial, appellee Heath testified that he signaled for a left turn; the wife-appellant testified that she observed no signals. Appellee Heath also testified that there were two "blind spots" which he could not see while using his truck's rear view mirror.

The case was tried before a jury, which returned a verdict in favor of the appellees. Appellants' motion for a new trial was denied, and on August 29, 1974, judgment

[ 234 Pa. Super. Page 609]

    was entered on the verdict of the jury. This appeal followed.

Appellants contend that the following sentence in the charge constituted reversible error: "On the other hand, if you find that the turn was signaled as required by the law and that Mrs. Delp would have seen the signal lights if she had been watching and proceeding as the reasonable, careful, prudent person, then you would find, of course, that Mrs. Delp was contributorily negligent and she could not recover."

"'[I]n all cases questioning the accuracy of a charge to the jury, we must not take the challenged words or passage out of the context of the whole charge, but must look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.'" McCay v. Philadelphia Electric Co., 447 Pa. 490, 499, 291 A.2d 759, 763 (1972), quoting Whitner v. Lojeski, 437 Pa. 448, 454, 263 A.2d 889, 892 (1970). Applying this standard, we cannot say that the charge complained of in this case amounted to reversible error.

Appellants contend that this sentence amounted to a directed verdict against them on the issue of contributory negligence. Yet in the sentence immediately preceding this, the lower court stated that "[s]hould you find that there were no signal lights and that this was the proximate cause of the accident, then Mr. Heath would be negligent as a matter of law." In this context, it is ...


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