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MARGARET SMITH v. BURTON CHARDAK AND SHERRE CHARDAK (10/02/81)

filed: October 2, 1981.

MARGARET SMITH, APPELLANT,
v.
BURTON CHARDAK AND SHERRE CHARDAK



No. 1216 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 2502 of 1975

COUNSEL

Michael G. Trachtman, Norristown, for appellant.

Gilbert P. High, Jr., Norristown, for appellees.

Hester, DiSalle and Popovich, JJ.

Author: Popovich

[ 291 Pa. Super. Page 175]

This action of trespass arises out of injuries suffered by Margaret Smith, appellant, when struck by the vehicle driven by Sherre Chardak, appellee. The jury returned a verdict for the appellee.*fn1 Appellant's motion for a new trial was denied and she filed this appeal arguing solely that the court's charge to the jury was in error. We agree and order a new trial.

Where the accuracy of a charge is in issue, an appellate court must look to the charge in its entirety against the background of evidence in order to determine whether or not error was committed and whether that error was prejudicial to the complaining party. Slavish v. Ratajczak, 277 Pa. Super. 272, 419 A.2d 767 (1980).

The evidence indicates that around 8:00 p. m. on the 3rd of September, 1974, appellant had just left her place of employment in the Cedarbrook Mall, located in Philadelphia, Pennsylvania. The appellant was walking south toward the intersection of Cheltenham and Mt. Airy Avenues. The intersection is controlled by traffic lights, and there are two lanes of travel and left-hand turn lanes on Cheltenham leading into the Mall, which are divided by a medial strip. Appellant had traversed part of the roadway to the medial strip and was intent on crossing Cheltenham to reach a bus

[ 291 Pa. Super. Page 176]

    stop. At this same time, appellee was driving her MG east on Cheltenham, in the company of two friends -- James Dominic was seated in the front and William Sturchio was in the back. Because it was raining heavily, the appellee had her headlights and windshield wipers on and was moving between 15 and 25 miles per hour. Around 100 feet from the intersection, appellee observed that the light governing her lane was green.

At trial, the witnesses gave varied accounts of when they noticed the appellant. The appellee's version placed the victim approximately five feet in front of her vehicle, at a point about two feet right of the medial strip, before she came into her line of vision. On cross-examination, however, appellee revised her estimation to "three car lengths, or forty-five feet." (RR 192a) The appellee also noted that the appellant was carrying an open umbrella, which was aimed in the direction of on-coming traffic.

Next, James Dominic, who was called by the appellant, remarked that he initially observed the victim "approximately one hundred feet from the intersection," and she was "standing on the medial strip." (RR 55a 56a) The second time was "[a]bout thirty feet . . . to fifty feet" from the intersection, id., and she was "[s]tepping off the curb." (RR 57a) Given such statements, counsel for appellant produced a transcript of a deposition taken on August 12, 1976, in which the witness stated that he first saw the victim 35 feet, and not 100 feet, prior to impact; and that "she was walking" instead of standing on the medial strip. (RR 66a) The witness conceded the inconsistency and admitted that his recollection was better two years after the accident than at trial. (RR 69a) The witness went on to corroborate the appellee's accounting of the appellant holding an umbrella "to her side, facing . . . traffic[,]" (RR 58a), although he did not remember the color of the traffic signal.

Lastly, when William Sturchio took the stand, he related that upon approaching the intersection, the light was green and that his recollection of the appellant was that she was standing ...


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