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HOMER A. BOHNER AND FRANCES W. BOHNER v. JEFFREY R. STINE (07/15/83)

filed: July 15, 1983.

HOMER A. BOHNER AND FRANCES W. BOHNER, HIS WIFE, APPELLANTS,
v.
JEFFREY R. STINE



No. 3180 Philadelphia 1981, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Cumberland County, No. 11 of 1978.

COUNSEL

Bruce D. Desfor, Harrisburg, for appellants.

David E. Lehman, Harrisburg, for appellee.

Brosky, Rowley and Montgomery, JJ.

Author: Per Curiam

[ 316 Pa. Super. Page 430]

Following an automobile collision which occurred on October 1, 1976, plaintiffs-appellants filed an action in trespass against defendant-appellee seeking recovery for personal injuries and other damages. A jury trial was held before the Honorable Harold A. Sheely, and a verdict was returned in favor of defendant-appellee. Appellants' timely filed motion for a new trial was denied, and an appeal to this court was taken. The appeal was quashed as the verdict had not been reduced to judgment. Bohner v. Stine, 292 Pa. Super. 31, 436 A.2d 705 (1981). Judgment was thereafter entered and the instant appeal was perfected. We reverse the judgment of the trial court and remand for a new trial.

Appellants assert that the trial court's charge to the jury was misleading and an inaccurate statement of the law. They argue that the jury was not properly advised that skidding on a wet roadway is not, in and of itself, justification for crossing the center line; and, that the trial court's instructions regarding the shifting of the burden of proof to defendant-appellee, who crossed the center line, was misleading.

That portion of the trial court's charge which is relevant to appellants' specific claims reads as follows:

[ 316 Pa. Super. Page 431]

". . . these particular statutes*fn1 dictate the duty of care normally required of a person in the same situation as the defendant. Ordinarily the unexplained violation of these statutes or any one of them would constitute negligence as a matter of law. In this case, however, the defendant has presented evidence in excuse or justification for being on the other side of the road. He has explained it by saying that under these circumstances what he did, his car skidded.

When a driver permits his car to deflect from its cause [sic] and to skid across the highway into another car, the jury may infer that he was negligent. Under the circumstances here presented, the law says that the defendant who offers such an excuse has the burden of proof that he was on the other side without any fault of his own. Therefore, if you find that there was a violation of any of these three statutes, it would be evidence of negligence which you should consider along with all the other evidence presented on the question of whether the defendant was negligent."

In evaluating a claim of erroneous instructions to the jury, we must analyze the court's charge in its entirety. Morris v. Moss, 290 Pa. Super. 587, 435 A.2d 184 (1981). A review of the above exerpt within the context of the entire charge evinces no error on the part of the trial court.

At the conclusion of the court's instructions to the jury, appellants requested that the court read several points for charge concerning issues of liability. Appellants asserted that the court had not adequately covered the shift of the burden of proof to appellee who was on the wrong side of

[ 316 Pa. Super. Page 432]

    the road at the time of the accident. The trial court refused the request on the ground that he had substantially ...


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