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JAMES PETER MICKEY AND HELEN MICKEY v. ELWOOD AYERS AND IRENE E. AYERS (12/14/84)

filed: December 14, 1984.

JAMES PETER MICKEY AND HELEN MICKEY, APPELLANTS,
v.
ELWOOD AYERS AND IRENE E. AYERS



No. 03118 PHL 82, Appeal from the Judgment entered January 27, 1983 in the Court of Common Pleas of Northampton County, Civil Division, at No. 1981-C-931.

COUNSEL

Richard E. Santee, Jr., Bethlehem, for appellants.

Thomas R. Elliott, Jr., Easton, for appellees.

McEwen, Beck and Hoffman, JJ.

Author: Hoffman

[ 336 Pa. Super. Page 514]

Appellants contend that the trial court committed reversible error in charging the jury on the "assured clear distance ahead" rule, 75 Pa.C.S.A. ยง 3361. Because we find appellants' contention meritless, we affirm the lower court's denial of appellants' motion for new trial.

This case involves conflicting versions of a two-car, head-on collision that occurred on June 28, 1980, on Route 611, a winding road in Forks Township, Northampton County. Appellants, Mr. and Mrs. Mickey, allege that appellee, Mr. Ayers, driving north on the two-lane highway, went off the road to his right, struck a guardrail, and then ricocheted into the southbound lane, the lane in which appellants were traveling. Because of the emergency created by the sudden appearance of appellee's automobile, appellants swerved into the northbound lane to avoid appellee, but there crashed head-on into appellee who had moved back into his proper lane of travel. Appellees, Mr. and Mrs. Ayers,*fn* allege that appellants crossed over into their lane, that appellee tried to maneuver his car as far to the right as possible so as to avoid the oncoming car, and that the cars thereupon collided head-on.

On February 4, 1981, appellants filed a complaint in trespass against appellees seeking damages for personal injuries sustained in the crash. Counsel for both sides agreed to bifurcate the trial, with only the issue of liability to be heard by the jury. After a June 21-22 trial, the jury returned a verdict in favor of appellees, finding that appellee had not been negligent. Thereafter, appellants timely filed a motion for new trial which was denied by the court on October 19, 1982. This appeal followed.

To constitute reversible error, a jury instruction must be shown not only to have been erroneous but also

[ 336 Pa. Super. Page 515]

    harmful to the party complaining. Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965); see also Junk v. East End Fire Department, 262 Pa. Superior Ct. 473, 485, 396 A.2d 1269, 1275 (1978) (harmless errors in instructing the jury will not warrant the granting of a new trial). In determining whether error has been committed, the charge must be read in its entirety. James v. Ferguson, 401 Pa. 92, 97, 162 A.2d 690, 693 (1960); Harman et ux. v. Chambers, 358 Pa. 516, 519, 57 A.2d 842, 844 (1948); Murphy v. Dyer, 223 Pa. 18, 22, 72 A. 276, 277 (1909). Here, the pertinent parts of the charge are as follows:

[I]f you find that a party in this case violated any one or more of the provisions in the Vehicle Code, then you must find that party negligent as a matter of law. It is negligent to violate provisions of the Motor Vehicle Code.

Now, there are a number of provisions of the Vehicle Code which apply in this case. The first one is called the "Assured Clear Distance ...


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