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March 31, 1976

ROCCO FARMS FOODS, INC. and Richard Columbis DeLawder

The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 This is a diversity action arising out of an automobile accident which occurred approximately four hundred feet west of Concord Road on U.S. Route, 1, Concord Township, Delaware County, Pennsylvania. Plaintiff Dianne Holmgren was operating a Ford pickup truck with a horse trailer attached which collided with a truck tractor-trailer owned by the defendant and being operated by Richard C. DeLawder, an employee of defendant. The case was tried before the court and jury and resulted in a verdict for the defendant. Before the court is plaintiff's motion for a new trial.

 Treating the evidence as we are required to do in a light most favorable to the defendant, Kridler v. Ford Motor Company, 422 F.2d 1182, 1183-84 (3d Cir. 1970), the evidence shows that on November 9, 1973, at 1:30 A.M. defendant's vehicle was proceeding north on Route 1, in the right lane at a speed of about 35 miles per hour. It was drizzling and the surface of the highway was wet. When seventy five or eighty feet from a driveway, providing an exit from parking space located on the east side of Concordville Inn, operator of defendant's tractor-trailer observed "lights coming on the road. So I applied my brakes. I did not see no vehicle at the time. I applied my brakes and as I approached the intersection to Concordville, the northern intersection, Miss Holmgren just pulled directly out in front of me and I hit her right in her door." (N.T. May 1, 1975, p. 29). Mr. DeLawder further stated that after the impact he noticed tire marks left on the highway by his vehicle which he estimated to be forty or fifty feet long. (N.T. 30). The plaintiff produced evidence that was contradictory to that offered by defendant which was placed before the jury for factual decision. In the laboratory of their deliberation, the jury decided to accept the defendant's version as creditable and resolved the liability issue against the plaintiff.

 Initially the plaintiff contends that the Court's charge on the doctrine of contributory negligence was erroneous. The Court defined contributory negligence as follows:

"Contributory negligence is fault on the part of the person injured, which cooperates in some degree with the negligence of another, and so helps to bring about the injury. It is the failure of the person injured to act as a reasonably prudent person properly considerate of himself under all the circumstances. Just in the same way that the defendant has the duty to act in a way that does not subject certain others to an unreasonable risk of harm, so plaintiff herself has the duty not to act so that she would subject herself to a similar unreasonable risk of harm under all the circumstances. Just as you must judge whether or not defendant was negligent; and whether or not that negligence, if any you find, was a proximate cause of plaintiff's injuries; so you must determine whether on the basis of all the evidence before you plaintiff herself acted in a way that subjected herself to unreasonable risk of harm, and, if she did so act, whether that contributed proximately to any part of her injuries.
You must also note here that plaintiff's duty involves acting or refraining from acting, in such a way that her negligence does not contribute in any degree to the injury. Defendant's negligence, on the other hand, must have been a substantial factor in causing the injury." (N.T. May 1, pp. 70-71).

 The Court has reviewed the case of McCay v. Philadelphia Electric Company, 447 Pa. 490, 291 A.2d 759 (1972) relied upon by counsel as supportive of their respective positions. In our view the Court's instructions are in harmony with the McCay holding and constitutes a correct statement of Pennsylvania law.

 Plaintiff takes issue with the charge on "burden of proof." On this point the Court charged:

"The plaintiff, in the instant case, has the burden of proving, by a fair preponderance of the evidence, that Rocco Farm Foods, Inc. and Richard C. DeLawder were negligent and that their negligence was the proximate cause of the accident." (N.T. May 1, p. 69).
"Remember, ladies and gentlemen of the jury, the burden is on the proponent of a claim, in a civil action such as this, to prove every essential element of his claim by what is known as "the preponderance of the evidence." This means that the party putting forth a claim must prove that the material elements supporting his claim are more likely present than not. If a party urging a claim upon you fails to establish any essential element of its contention by a preponderance of the evidence in the case, that is, if you are not convinced that the essential parts of his story are more likely true than not true, then the jury must find for his opponent on that issue."

 and in conjunction therewith affirmed and read to the jury defendant's sixth requested point for charge which stated:

"Six. The burden of the plaintiff in this case is a heavy one; it has been stated as follows:
'. . . when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom such evidence, in order to prevail, must be adequate to establish the conclusions sought and must so preponderate in favor of that conclusion as to outweigh in the minds of the factfinders any ...

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