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FRANK N. PARISE AND TINY JO PARISE v. GOLDIE S. FEHNEL (06/15/79)

decided: June 15, 1979.

FRANK N. PARISE AND TINY JO PARISE, HIS WIFE
v.
GOLDIE S. FEHNEL, APPELLANT



No. 678 October Term 1978, Appeal from Order of the Court of Common Pleas, Northampton County. Civil Action Law at No. 38, October Term, 1974

COUNSEL

Robert E. Simpson, Jr., Easton, for appellant.

Thomas L. Walters, Easton, for appellees.

Cercone, Spaeth and Lipez, JJ.

Author: Spaeth

[ 267 Pa. Super. Page 80]

This is an appeal from an order denying motions for judgment n. o. v. and new trial. A jury awarded damages to appellees in their negligence action against appellant. The sole issue before us is whether the lower court erred in not granting appellant's request that it charge the jury that:

If you find as a fact that the car operated by the Plaintiff, Tiny Jo Parise, was equipped with a seat belt system and that the Plaintiff, Tiny Jo Parise, failed to use the seat belts at the time of the accident, you may use this fact of a failure to use the seat belt as evidence of contributory negligence on the issue of damages only, if you also find as a fact that there was competent testimony showing a causal connection between the nonuse of the seat belt and the injuries.

[ 267 Pa. Super. Page 81]

Record at 19a-20a.

Mrs. Parise testified that her car was equipped with lap seat belts, but that she was not wearing them at the time the accident occurred. Record at 81a. She testified that when her car collided with appellant's car, she was thrown forward, her chest hitting the steering wheel and her knees going into and under the dashboard, Record at 81a, and that when she regained consciousness, she was lying on the steering wheel, face down, Record at 39a. Mrs. Parise was taken to the hospital, where she noticed bruises on her chest around her ribs; she attributed these to having hit the steering wheel. Record at 44a. She testified that since the accident she has had continuous problems with her legs and lower back. Record at 65a. Dr. Evan C. Reese, an orthopedic surgeon, testified that he had treated Mrs. Parise for an injury to her left knee, which he regarded as consistent with the history she had given him of being hurt in the accident. Record at 142a-145a.

The lower court, sitting en banc, upheld the trial judge's refusal to give the requested instruction by stating that "no causal connection between the non-use of the seat belts and [Mrs. Parise's] injuries has been demonstrated in this case." Record at 221a.

It is axiomatic that "a trial judge should not instruct a jury to find a material fact in the absence of evidence to support the finding." Heffernan v. Rosser, 419 Pa. 550, 215 A.2d 655 (1966); see also Downing v. Shaffer, 246 Pa. Super. 512, 371 A.2d 953 (1977). "To submit a fact, destitute of evidence, as one that may, nevertheless, be found, is an encouragement to err which cannot be too closely observed or unsparingly corrected." Marlowe v. Travelers Ins. Co., 313 Pa. 430, 433, 169 A. 100, 101 (1933). In the case before us, to have granted appellant's requested point for charge would have been an invitation to the jury to engage in "pure speculation on a very material point," Stegmuller ...


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