Appeal from the Order of the Superior Court of Pennsylvania, entered November 9, 1984, at No. 184 Pittsburgh, 1983, reversing the judgment entered January 20, 1983, in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 80-5316. Pa. Super. , 487 A.2d 443 (1984)
David H. Patterson, Louis C. Long, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for appellants.
John R. McGinley, Grogan, Graffam, McGinley & Lucchino, James R. Moyles, Poughkeepsie, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a concurring opinion in which Papadakos, J., joined. McDermott, J., filed a concurring opinion. Nix, C.j., filed a dissenting opinion in which Flaherty and Hutchinson, JJ., joined. Flaherty and Hutchinson, JJ., filed a dissenting opinion.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
This appeal arises out of injuries George Waddle*fn1 sustained as a result of being struck by the vehicle driven by the Appellant, Leslie Nelkin.*fn2 The record facts indicate that on June 8, 1979, Waddle was struck by a vehicle operated by the Appellant while in the course of her employment. Waddle testified that around noon on the day of the occurrence, he made a service repair call for one of his trucks on Wabash Avenue in the West End section of the City of Pittsburgh. He also indicated that he drove a green pickup truck, which was free from any dents or damages, to the service call and that after the occurrence there were two dents behind the driver's door. As to the occurrence itself, Waddle had no recollection. In addition, Waddle offered the testimony of Leroy Macklin as to what transpired prior to the incident. He testified that Waddle's pickup truck and his disabled vehicle were parked partially on the curb, one in front of the other, such that the rear of the pickup truck was facing the front end of the disabled tractor trailer. Macklin testified that after Waddle completed his repairs, he observed Waddle walk around the front end of his pickup truck, close the front hood, and proceed toward the driver's side of his vehicle. Although Macklin did not actually observe the impact, he did hear a thud and observed Waddle flying through the air.
The Appellant testified that she was en route from New York City to Pittsburgh at the time of the occurrence. After flying into Greater Pittsburgh International Airport and renting an automobile, she stopped for lunch between the airport and her appointment in downtown Pittsburgh.
After lunch, she proceeded on Wabash Avenue en route to the city, stopping once to verify that she was traveling in the correct direction. At the time of the incident, she testified that she was operating a white Thunderbird and traveling between 20 to 25 miles per hour. When she first observed Waddle, she testified that she was no more than 20 feet from him and that his pickup truck and tractor trailer were parked side by side. After striking Waddle, her vehicle was stopped approximately in the middle of the roadway. She also testified that she did not recall if there was any green paint on the right front of her white Thunderbird before or after the accident. Finally, she did not recall using her horn prior to striking Waddle.
After consideration, a jury determined that Waddle was 60 percent at fault while Appellant was only 40 percent at fault, and thus judgment was entered in favor of the Appellant in accordance with comparative negligence.*fn3 On appeal, Superior Court vacated the judgment and remanded for a new trial, 337 Pa. Super. 636, 487 A.2d 443. The basis for the reversal was the trial judge's refusal to give the following jury instruction:
"Where a plaintiff's mind is blank as to an accident and all its incidents the presumption is that he did all that the law required him to do and was not guilty of negligence."
We thereafter, granted the Appellants' petition for allowance of appeal and now affirm.
At the conclusion of the trial, Waddle requested that the jury be instructed that he was entitled to a presumption of due care because he had no recollection of the accident. There appears no evidence disputing that Waddle was suffering from amnesia. The Appellant successfully argued before the trial court that the instruction was unnecessary since there was testimony regarding the circumstances immediately prior to the incident. In addition, both the trial court and the Appellant agreed that if any error occurred such error was harmless since the trial court properly
instructed the jury as to the Appellants' burden of proving contributory negligence. The Superior Court disagreed holding that the evidence did not establish contributory negligence as a matter of law, thus requiring the requested point for charge. The Superior Court, however, did not address the harmless error argument.
In Auel v. White, 389 Pa. 208, 132 A.2d 350 (1957), we set forth the controlling law regarding the issue of the presumption of due care.
Where a plaintiff's mind is a blank as to an accident and all its incidents, the presumption is that he did all that the law required him to do and was not guilty of contributory negligence. The presumption, however, is a rebuttable one and must give way when the facts as established by plaintiff's evidence shows that he was guilty of contributory negligence. (Citations omitted)
389 Pa. at 214, 132 A.2d at 353. See also, Kmetz v. Lochiatto, 421 Pa. 363, 219 A.2d 588 (1966). Therefore, having conceded that Waddle was suffering from amnesia, the only issue is whether the evidence offered by Waddle rebutted the presumption of due care. Like the Superior Court, our review finds no such evidence.
Unlike the plaintiff in Auel, or Heath v. Klosterman, 343 Pa. 501, 23 A.2d 209 (1941), Waddle did not call Nelkin as a witness to establish the facts of the occurrence. True, Waddle did call Leroy Macklin as his witness, but his testimony only established facts prior to and subsequent to the actual occurrence. Our review of the evidence offered by Waddle supports his position that his evidence did not establish contributory negligence as a matter of law thereby rebutting the presumption of due care.
In fact, Appellant's testimony appears suspect at best, with regard to the occurrence. The Appellant testified that at the time she observed Waddle she was traveling between 20 to 25 miles per hour, yet, she was unable to bring her vehicle to a stop prior to striking Waddle when he was 20 feet in front of her. She further testified that she did not blow her horn to alert Waddle of her presence. Finally, she
testified that she did not remember a dent in either her automobile or the pickup truck, even though she was driving a rented automobile which is always subject to inspection for damages. Thus, it is clear that under all the facts the trial court could not determine as a matter of law that Waddle was contributorily negligent.*f ...