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filed: May 29, 1986.


Appeal from the Judgment entered July 19, 1983 in the Court of Common Pleas of Allegheny County, Civil, at No. G.D. 79-14063.


James Cole, Pittsburgh, for appellants.

John E. Wall, Pittsburgh, for appellee.

Cirillo, President Judge and Cavanaugh, Brosky, Wieand, McEwen, Olszewski, Del Sole, Montemuro and Tamilia, JJ. Cirillo, President Judge, Brosky, Wieand, Del Sole and Tamilia, JJ., join in opinion for affirmance. Olszewski, J., files concurring opinion. McEwen, J. joins in concurring opinion. Cavanaugh, J. files dissenting opinion.

Author: Montemuro

[ 353 Pa. Super. Page 507]

On December 6, 1978, appellant, Ruth J. Pachesky, was injured during an attempt to rescue appellee, Frank D. Getz. Ms. Pachesky and her husband, Robert Pachesky [hereinafter appellants], thereafter commenced an action against appellee in the Court of Common Pleas of Allegheny County.

On September 25, 28 and 30, 1981, this case was tried before the Honorable I. Martin Wekselman and a jury. Responding to special interrogatories propounded by the court below, the jury found that: (1) both Ms. Pachesky and appellee were negligent; (2) their respective negligent acts or omissions were substantial factors in bringing about Ms.

[ 353 Pa. Super. Page 508]

Pachesky's injuries; and (3) of the total causal negligence, 20% was attributable to appellee and 80% was attributable to Ms. Pachesky. In light of these findings, the court below entered a verdict in favor of appellee. See 42 Pa.C.S. ยง 7102.

On October 9, 1981, appellants filed a motion for new trial, which was briefed and argued by the parties, and subsequently denied by the court below in an order dated July 13, 1983. Judgment was entered on the verdict and this timely appeal followed.

As ably set forth in the opinion of the court below, the unfortunate circumstances giving rise to this action are the following:

In the early morning hours of December 6, 1978, plaintiff [appellant] Ruth Pachesky was returning from work. Her home was at the crest of a hill on Tingley Avenue in the Borough of Bellvue. As she approached her home, she observed a stationary car in the middle of the street just below the crest of the hill. She passed the stationary vehicle and noticed that its lights were on, the engine was running, the windows were up, and that a man, who proved to be defendant [appellee] Frank D. Getz, was slumped motionless over the steering wheel. Believing the defendant was being overcome by carbon monoxide, she parked her car, ran into her house and got her husband, plaintiff [appellant] Robert Pachesky. The two of them returned to the scene, pounded on the windshield and shouted in an attempt to arouse defendant. When defendant failed to respond, they tried to open the passenger side door and found that it was locked. Mrs. Pachesky then ran around to the driver's side, opened the door, rolled down the window and turned off the ignition. As soon as the ignition was turned off, the car began to drift backwards down the hill. The open door of defendant's car struck Mrs. Pachesky, knocking her to the ground and inflicting certain personal injuries on her. Evidence at trial indicated that defendant was intoxicated and that

[ 353 Pa. Super. Page 509]

    possibility was really not seriously contested by defendant.

Lower court opinion, 1-2.

The issues presented by appellants for our review are: (1) whether the verdict was against the weight of the evidence; (2) whether the court below erred with respect to its jury instruction on "proximate causation"; and (3) whether the court below "erred in refusing to instruct the jury that when a plaintiff is injured while attempting to rescue a defendant who negligently placed himself in a position of peril the plaintiff cannot be found contributorily negligent unless the plaintiff's actions were rash or wanton." Appellants' brief, 3.

I. Weight of the Evidence.

Appellants' first issue need not detain us. In Sperrazza v. Cambridge Mutual Fire Insurance Company, 313 Pa. Super. 60, 459 A.2d 409 (1983), we reiterated standards of review equally pertinent to the case sub judice:

When considering a motion for a new trial on the grounds that the verdict was against the weight of the evidence, the evidence is not considered in the light most favorable to the verdict winner. Rather, all evidence must be reviewed to determine whether the verdict is so contrary to the evidence as to shock one's sense of justice, making the award of a new trial imperative so that right may be given another opportunity to prevail. Cianci v. Burwell, 299 Pa. Super. 387, 390, 445 A.2d 809, 810 (1982); Peair v. Home Association of Enola Legion No. 751, supra 287 Pa. Super. [400] at 410, 430 A.2d [665] at 670 [1981]. The grant of a new trial is within the sound discretion of the trial judge whose exercise thereof will not be reversed in the absence of a palpable abuse of discretion. Yandrich v. Radic, 291 Pa. Super. 75, 79, 435 A.2d 226, 229 (1981); Canery v. Southeastern Pennsylvania Transportation Authority, 267 Pa. Super. 382, 391, 406 A.2d 1093, 1097 (1979); Ditz v. Marshall, 259 Pa. Super. 31, 35, 393 A.2d 701, 703 (1978).

[ 353 Pa. Super. Page 510]

    conclusion on the evidence presented. The trial judge is not free to usurp the function of the jury in those situations where there is evidence from which the jury could have found as it did.

Lower court opinion, 3. While appellee's causal negligence, as demonstrated by the record, was patently not insignificant, our sense of justice is nevertheless unoffended by the jury's apportionment. Not only are we unable to find any "palpable abuse of discretion" on the part of the court below with respect to this issue, we are of the opinion that the court's evidential analysis and subsequent disposition were quite proper.

II. Causation.

Prefacing its charge as to "proximate causation", the court below instructed the jury that, "Proximate means immediate, nearest, next in order, and in its legal sense, closest in causal connection." N.T., 85. Appellants assign this instruction as reversible error. Specifically, appellants argue that, on the basis of this instruction, the jury may have mistakenly concluded that appellee's negligence was not actionable in that Ms. Pachesky's acts were temporally supervenient; i.e., appellee's acts could not be viewed as "nearest" or "closest" and therefore "proximate". Not only is appellants' contention belied by the jury's ultimate attribution of 20% of the causative negligence to appellee, considering the totality of the charge on "proximate causation", any error with regard to the portion complained of clearly does not warrant reversal.

In Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984), our supreme court observed:

It is well settled in our Commonwealth that when the propriety of the jury instruction of the trial court is at issue, those instructions must be viewed in toto to determine if any error has been committed. Unless the charge as a whole can be demonstrated to have caused prejudicial error, we will not reverse for isolated inaccuracies. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291

[ 353 Pa. Super. Page 512]

A.2d 759 (1972). Vanic v. Ragni, 435 Pa. 26, 254 A.2d 618 (1969).

Id., 504 Pa. at 576, 475 A.2d at 1316. See also Naccarati v. Garrett, 351 Pa. Super. 437, 506 A.2d 428 (1986). Immediately following its definitional instruction with respect to the word "proximate", the court below offered a full explication of the legal theory of "proximate causation", charging:

So proximate cause means that, which in a normal and continuous sequence, unbroken by any efficient intervening cause, produces the incident and without which the result would not have occurred. To constitute proximate cause, an act or omission must be such as would probably result in harm, and it must be a substantial factor in bringing about that harm.

N.T., 85. Additionally, responding to a request by the jurors for a legal definition of the word "substantial", the court below subsequently supplemented its charge, stating:

I will attempt to give you a legal definition of the word, substantial, in addition to what I have already given you. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with the accident. Now, that is the best I can do for you as a legal definition of the word, substantial, as it is applicable to the issues of negligence and contributory negligence in this case.

Id. at 114-15. We are of the opinion that the court's instructions as they specifically related to the overall concept of proximate, or "legal", causation were in complete consonance with the ...

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