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filed: December 12, 1984.


No. 1499 Philadelphia, 1982, Appeal from Judgment Entered May 12, 1982 Court of Common Pleas, Civil Division, Centre County, No. 1980-600


Henry E. Rea, Jr., Pittsburgh, for appellant.

John W. Blasko, State College, for appellee.

Cavanaugh, McEwen and Hoffman, JJ. McEwen, J., filed a dissenting opinion.

Author: Cavanaugh

[ 336 Pa. Super. Page 571]

This is an appeal from an order of the Court of Common Pleas of Centre County, sitting en banc, denying appellant's Motion for New Trial, and entering judgment on the verdict in favor of appellee. In his suit, appellant, Ackerman, a pedestrian, sought damages from appellee, Delcomico, a motorist, as a result of accidental injury.

Ackerman contends that the lower court erred in: (1) allowing the introduction of evidence on the issue of intoxication of appellant, and, (2) charging the jury on 75 Pa.C.S. § 3550, when there was no evidence that the appellant was a "hazard" under that section. We agree with appellant that the lower court erred in its charge to the jury on 75 Pa.C.S. § 3550, insofar as it expressly incorporated the

[ 336 Pa. Super. Page 572]

    presumption under 75 Pa.C.S. § 1547(d)(3), which was unduly prejudicial to appellant. We therefore reverse and remand for a new trial.

The record reveals the following. Appellant, who was on foot, was struck by a vehicle operated by appellee at an intersection in State College, Pennsylvania. The accident occurred on March 4, 1979 at approximately 11:00 P.M. The night was foggy and rainy. The only witness to the accident were the two parties herein and Janet Zoller, appellant's girlfriend. Ackerman testified that he had no independent recollection of the events in question. Appellee testified that he did not see appellant until after he had hit him. Therefore, Zoller was the only witness able to observe and testify to appellant's conduct before being struck.

The accident occurred as Ackerman and Zoller, who was walking five feet behind appellant, proceeded to cross Atherton Street, at its intersection with Westerly Parkway. The street is approximately forty feet wide, and has two lanes running south and one running north. When they first stepped off the curb, thus entering the northbound lane, the green light for the traffic was in their favor, and they started to cross the street. About the time Zoller reached the double yellow line, she looked up and noticed appellee coming down the downgrade of Atherton Street towards them, in the far southbound lane, that is, the lane closest to the curb. At that time she also looked at the traffic signal and noticed that the light had changed, so that they were then crossing against the light. Appellee testified that he saw Zoller from about a distance of twenty yards from the intersection, but did not see Ackerman. Zoller testified that she saw appellant glance in the direction of appellee's car, but that he continued to walk at the same rate of speed. Appellant was struck approximately three feet from the curb.

Zoller and Martin Brown, appellant's roommate, testified that appellant had been drinking beer since late in the afternoon on the day of the accident. Appellee testified, as did the medical personnel who treated appellant after being

[ 336 Pa. Super. Page 573]

    struck, that appellant's breath smelled strongly of beer. In addition, a blood alcohol content of .195 was read into the record from appellant's hospital record. Additional evidence from appellant's hospital record was read into the record which revealed that appellant admitted drinking heavily that afternoon, and that after the accident he had slurred speech and an unusually low level of alertness. Notably, however, Zoller testified that before the accident, appellant was not slurring his speech, staggering, or swaying in his gait or exhibiting any type of conduct evidencing an intoxicated state.

The issues on appeal are whether the court erred: in admitting into evidence certain testimony proffered for the purpose of proving appellant was intoxicated; and, in its charge to the jury.

There are several statutory provisions pertinent to our consideration:

75 Pa.C.S. § 3550. Pedestrians under influence of alcohol or controlled substance

A pedestrian who is under the influence of alcohol or any controlled substance to a degree which renders the pedestrian a hazard shall not walk or be upon a highway except on a sidewalk.

75 Pa.C.S. § 1547, Chemical testing to determine amount of alcohol or controlled substance, in effect at the time of trial, provided in pertinent part:

(c) Test results admissible in evidence. -- In any summary proceeding or criminal proceeding in which the defendant is charged with driving a motor vehicle while under the influence of alcohol, the amount of alcohol in the defendant's blood, as shown by a chemical analysis of his breath or blood, which analysis was conducted with equipment of a type approved by the Department of Health and operated by qualified personnel, shall be admissible in evidence.

(d) Presumptions from amount of alcohol. -- If chemical analysis of a person's breath or blood shows:

[ 336 Pa. Super. Page 574]

. . . .

(3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, it shall be presumed that the defendant ...

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