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DONALD E. KUHN v. NANCY MICHAEL (12/05/80)

filed: December 5, 1980.

DONALD E. KUHN, APPELLANT
v.
NANCY MICHAEL



No. 1223 April Term, 1978 Appeal from the Order of the Court of Common Pleas of Erie County, Pennsylvania, No. 335-A-1974.

COUNSEL

Edward W. Goebel, Jr., Erie, for appellant.

William J. Kelly, Erie, for appellee.

Spaeth, Van der Voort and Watkins, JJ. Spaeth, J., files a concurring opinion.

Author: Watkins

[ 283 Pa. Super. Page 103]

This is an appeal from the Order of the Court of Common Pleas of Erie County by the plaintiff-appellant, Donald E. Kuhn. A jury verdict in favor of the defendant was rendered on January 13, 1978. After plaintiff's motion for a new trial or judgment, n. o. v., was denied by the court

[ 283 Pa. Super. Page 104]

    below the plaintiff took this appeal. On appeal, plaintiff claims that the court below erred in its charge to the jury.

On February 14, 1972, the plaintiff was injured in an automobile accident on East Fifth Street in Erie, Pennsylvania. At the trial plaintiff, his wife, and another witness testified that on the date of the accident the plaintiff and his wife were proceeding westerly on East Fifth Street which was slippery at the time since it had snowed the night before the accident. The street was covered with slushy snow and ruts in the snow. The plaintiff stated that he had pulled his vehicle towards the north curb of the street and had stopped his vehicle temporarily about three to four feet from the north curb in order to permit traffic proceeding in an easterly direction to pass. The street was thirty (30) feet wide at this point and the plaintiff produced evidence showing that an automobile is from six to seven feet wide. Thus, according to plaintiff's testimony his vehicle was clearly in the correct lane of traffic when it was stopped. The testimony produced by plaintiff then indicated that the defendant, operating her vehicle in the opposite direction, approached plaintiff's vehicle, began to slide, slid into plaintiff's lane of traffic, and then struck plaintiff's vehicle causing injury to plaintiff. The defendant testified that she was going fifteen (15) miles per hour prior to the accident, that there were automobiles parked on her side of the roadway at the time; that plaintiff's vehicle was travelling at least seven feet from the north curb when she originally saw it at which point it was about twenty feet from her and moving towards her; that she pumped her brakes softly several times when her vehicle began to slide; that her vehicle slid in an easterly direction (not northeasterly as plaintiff had stated) and collided with plaintiff's vehicle; and that after the accident her vehicle was only six inches from the vehicles parked on her south side of the roadway. Thus, plaintiff's testimony tended to indicate that the defendant had slid across the center of the roadway into his vehicle and defendant's testimony tended to show that plaintiff was in her lane of traffic at the time of the accident.

[ 283 Pa. Super. Page 105]

Plaintiff's first assignment of error is that the court below erroneously refused plaintiff's point for charge which stated as follows:

"If you find that Miss Michael violated her duty to drive on the right-hand side of the street as far as possible to the right-hand edge or curb, and that this violation was due to her skidding on ice, you are instructed that being on the wrong side of the street is negligence and that Miss Michael bears the burden of proof to show that she was not to blame."

Plaintiff claims that the refusal of this point for charge was error because the court failed to charge the jury on defendant's burden of proof. Plaintiff argues that he had established a prima facie case of negligence on defendant's part by presenting testimony to the effect that the defendant had crossed the center of the roadway into his lane of traffic thereby striking his vehicle. He cites the case of Kenworthy v. Burghart, 241 Pa. Super. 267, 361 A.2d 335 (1976), in support of the proposition that the aforesaid point for charge should have been granted and the jury thereby instructed that the defendant had the burden of proving that she was not to blame for her vehicle's errant path. In that case, wherein a pedestrian was injured by a motorist when his vehicle skidded over onto the wrong side of the roadway thereby striking the pedestrian, we held that the trial court should not charge the jury that skidding itself is not negligence or that the pedestrian must prove that the motorist mismanaged his car before it skidded but that the jury should have been instructed that the burden of proof regarding the cause of the skidding is on the motorist who seeks to justify his violation of the statute (requiring a motorist to remain on the right hand side of the roadway) and his crossing over ...


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