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ROSE M. WISNIEWSKI v. G.W. EHEMANN AND BRUCE WILLIAM EHEMANN (02/04/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 4, 1983.

ROSE M. WISNIEWSKI, APPELLANT,
v.
G.W. EHEMANN AND BRUCE WILLIAM EHEMANN

No. 800 April Term, 1979, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Beaver County at No. 1312 of 1975.

COUNSEL

Richard J. Fidei, John A. Miller & Assoc. Ltd., Beaver, for appellant.

Bruce E. Woodske, Beaver, for appellees.

Cavanaugh, Brosky and Montgomery, JJ.

Author: Cavanaugh

[ 310 Pa. Super. Page 100]

The issues in this appeal from the denial of motions following a jury verdict for the defendant in an automobile accident injury claim are whether the verdict is against the weight of the evidence and whether in the circumstances of this case the court erred in refusing to charge the jury that there is a permissible inference of negligence when a moving vehicle collides with the rear end of a vehicle which has stopped and has a turn signal in operation. We find that

[ 310 Pa. Super. Page 101]

    under the circumstances the court erred in refusing the requested charge and grant a new trial.

On December 7, 1974 appellant Rose Wisniewski was on her way to work at the Sherwood Inn located on Brodhead Road, a two lane highway between Aliquippa and Monaca in Beaver County. She came to a stop and, according to her testimony, stood for about one minute with her right turn signal on awaiting the movement of traffic on the Sherwood Inn parking lot to permit her entry. Appellee Bruce Ehemann approached from the rear traveling on a downgrade in rainy weather with a view of a "couple" of hundred feet ahead. Although he applied his brakes he collided with the rear end of appellant's vehicle.

At the conclusion of the evidence the court began its charge to the jury by ruling on requests for charge. After refusing requests for binding instructions submitted by both parties the court ruled on appellant's only other point for charge as follows:

In addition, on behalf of the Plaintiff, we are also asked to instruct you "When a moving vehicle has collided with the rear end of a stopped vehicle with its right turn signal on, an inference of negligence arises." That is likewise refused because we think negligence is a question for you to determine under all the evidence in the case.*fn1

The first question we must resolve is whether it is ever proper to charge a jury that they may infer negligence on the part of the driver who they find has struck a standing vehicle on the highway in the rear. We think the law permits such an inference and that the charge is a proper one to which the driver of the forward vehicle is entitled. In Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969) the plaintiff in a case similar to the present one testified that he stopped his vehicle on the highway, that

[ 310 Pa. Super. Page 102]

    the highway was dry; that after a few seconds his car was struck in the rear by defendant's vehicle. The court found that while the plaintiff always has the burden of establishing the existence of negligence and its causal connection with the loss suffered, the plaintiff's testimony established a prima facie case meeting his burden. The principle that a fact-finder is entitled to draw an inference of negligence from the fact of a rear end collision was also recognized in Ingram v. Commonwealth Unemployment Compensation Board of Review, 47 Pa. Commw. 496, 408 A.2d 570 (1979).*fn2 And in another rear end collision case our court stated with respect to the defendant driver:

Since the automobile which caused the damage was driven by the defendant and was exclusively under his management and control, it was a fair inference for the jury that he failed to observe the degree of care required of him by law and that he therefore was chargeable with negligence which resulted in injury to the plaintiff. The question of defendant's negligence was fact for the jury to be determined from all the evidence in the case (Cirquitella et ux. v. Callaghan, Inc., supra) and the evidence adequately supports the verdict.

[ 310 Pa. Super. Page 103]

We conclude that it was prejudicial error to refuse the requested point for charge and grant a new trial.

Judgment reversed.


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