Appeal from the Judgment entered February 3, 1987 in the Court of Common Pleas of Washington County, Civil Division, at No. 39 October Term, 1984.
John H. Riordan, Jr., Pittsburgh, for appellant.
Kathleen S. Delach, Washington, for appellee.
Brosky, Del Sole and Hoffman, JJ.
[ 371 Pa. Super. Page 566]
This is an appeal from a judgment entered in accordance with a jury verdict finding for Appellee, defendant, and against Appellant, plaintiff, in a wrongful death and survival action. Following the denial of her motion for post-trial relief, Appellant filed the instant appeal citing a variety of errors with the trial judge's rulings and with the jury verdict. Among the issues raised by Appellant is a claim that the trial court erred in refusing her request for a jury instruction on her decedent's presumption of due care. Because we find this issue is meritorious and demands Appellant receive a new trial, we do not consider the other allegations of error presented in this appeal.
Necessary to an understanding of the issue before us is a brief review of the underlying circumstances. The record reveals that an automobile accident occurred at about 10:00
[ 371 Pa. Super. Page 567]
p.m. when a truck driven by Appellant's decedent collided with an automobile driven by Appellee. Prior to the accident both drivers had been traveling alone in opposite directions along Route 519 in North Strabane Township, Washington County. There were no witnesses to the actual collision. As a result of the accident the driver of the truck suffered injuries and died the next morning. The Appellee was unable to recall the events of that evening and at trial testified that his lack of memory was caused by injuries he sustained in the accident.
At trial both sides presented experts who differed in their opinion as to the location of the point of impact. Appellant's expert opined that Appellee's vehicle traveled across the center line and collided with the deceased's truck. Appellee's expert believed the point of impact occurred in the northbound lane indicating that Appellant's decedent must have crossed the center line. Since those involved in the accident were incapable of providing testimony as to its circumstances, both parties sought to have the jury instructed that the driver of their respective vehicles should be presumed to have been using due care at the time of the accident. The trial judge refused both requests for such a charge, and it is this ruling which Appellant questions.
In support of her claim, Appellant cites the Supreme Court decision in Waddle v. Nelkin, 511 Pa. 641, 515 A.2d 909 (1986). Therein, the plaintiff, Waddle, was struck by a vehicle operated by the defendant, Nelkin. Waddle had no recollection of the occurrence itself and therefore at trial he requested that the jury be instructed that he was entitled to a presumption of due care. The trial court refused 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 ...