Appeal No. 81-2-304 from September 25, 1981, Order of Superior Court at No. 125 Harrisburg, 1980. Appeal allowed December 7, 1981, at No. 110 M.D. Misc. Docket 1981.
Richard C. Angino, Harrisburg, for appellant.
Richard H. Wix, Bernadette Barattini, Harrisburg, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Larsen, J., files a dissenting opinion. McDermott, J., files a dissenting opinion.
Appeal dismissed as having been improvidently granted.
LARSEN, Justice, dissenting.
On June 26, 1977, an automobile driven by appellee Martin J. Radic struck nineteen-year-old George N. Yandrich while he was riding his bicycle. George died several days later as a result of the injuries he sustained; appellee was the only surviving witness to the accident. The case was tried to a jury which found decedent 79% negligent and appellee 21% negligent. Post-trial motions for judgment n.o.v. and a new trial were denied. On appeal, the Superior Court affirmed. Yandrich v. Radic, 291 Pa. Super. 75, 435 A.2d 226 (1981). This Court granted allocatur.
Because I believe that this case presents an important question of law and that the Superior Court erred in affirming the order of the court of common pleas, I dissent from the majority's determination that allocatur was improvidently granted.
Appellant contends that the Superior Court erred in affirming the trial court's order with respect to its jury charge on the presumption of due care.*fn1 The trial court instructed the jury as follows:
The law presumes that at the time of the accident causing George Yandrich's death he was using due care for his
own safety. As has been indicated, this is probably founded on the desire for self-preservation for the individual to avoid pain; but, this presumption is not evidence and does not take the place of evidence. If you find by a preponderance of the evidence, as I have described it to you, that the decedent was not exercising ...