385 Pa. 138 | Pa. | 1956
Lead Opinion
Opinion by
This action of trespass arises out of injuries suffered by wife-plaintiff when struck by the door of defendant’s elevator as she alighted therefrom. The jury returned a verdict for the defendant. Plaintiffs’ motion for new trial having been refused, they appeal and assign as error portions of the court’s charge.
In determining whether a court’s instructions to the jury are erroneous we must consider that charge as a whole, and if it is not misleading we will not reverse, even though there be some inaccuracies or misstatements. Error cannot be predicated upon isolated excerpts if, when read with the remainder of the charge, a true and correct charge is revealed: Scanlan & Son v. Sherbine, 382 Pa. 376, 379, 380, 114 A. 2d 900. So considered, the instant charge was a proper one.
Plaintiffs complain that the court erred in not explaining to the jury that the burden shifted to defendant to show how the injury occurred. But after charging as to the law of negligence and contributory negligence, the court unequivocally instructed the jury that that burden rested with defendant. It declared that the plaintiff was “aided ... by a presumption of negligence similar to that arising in the case of a common carrier.” (See McKnight v. S. S. Kresge Co., 285 Pa. 489, 492, 132 A. 575). Near the end of its charge it stated: “I say to you again that the law given to you by the Court now is the law of the case and will remain so until stated otherwise by our Appellate Courts . . . where a passenger is injured ... by the carrier, or its employee, ... in the operation of the
Plaintiffs next contend that the court erred in submitting to the jury conflicting instructions as to the duty of care owed by defendant to plaintiffs. It is true, as they contend, that the court submitted the ordinary, reasonably prudent man test. But it thereafter declared emphatically that “in Pennsylvania the owner of a passenger elevator is held to the highest degree of care in the . . . operation of its elevator in protecting from danger persons carried thereon.” (Italics supplied). In addition, near the end of the charge and at plaintiffs’ request, the court again declared that the defendant owed plaintiffs a duty of the highest degree of care. As plaintiffs contend, an erroneous statement of the law is not cured by a conflicting one which correctly states the law, and may be the basis for reversal; but this is so only if the correction is not made clear to the jury. If, as here, the court has distinctly corrected the error so as to leave no doubt as to the law to be applied, we will not reverse: Bender v. Welsh, 344 Pa. 392, 398, 25 A. 2d 182; Goldberg v. Philadelphia Rapid Transit Co., 299 Pa. 79, 84, 85, 149 A. 104.
It is next urged that the court misstated a disputed fact bearing on contributory negligence; unduly em
It is to be noted that at the conclusion of the charge the court asked: “Now, gentlemen, are you satisfied?” Both counsel answered in the affirmative. The charge was full, the court painstakingly clarified all matters of fact and law called to its attention by plaintiffs, and left no error therein.
Judgment affirmed.
Actually tlie applicable doctrine requires that the “risk of non-persuasion” be east upon the defendant. See Dillon v. Wm. Scull Co., 164 Pa. Superior Ct. 365, 369, 64 A. 2d 525.
Dissenting Opinion
Dissenting Opinion by
Mrs. Hazel G-. Black was injured when an elevator door closed on her arm as she was leaving the elevator on the third floor of the department store owned by the defendant, A. E. Troutman Company. The jury returned a verdict for the defendant company. Mrs. Black and her husband ask for a new trial on the ground that the Trial Court’s charge to the jury was incorrect, inconsistent, contradictory and confusing. I believe that the plaintiffs are justified in their complaint. A reading of the Court’s charge, as it appears in the record, will show that it is as chaotic as a cavalry charge. It advances, retreats, reverses, crosses and recrosses the field of discussion until all sense of direc
On the main issue in the case, the Court gave to the jury two opposing standards of care as to the duty devolving upon a store owner operating elevators for his customers. It said on the one hand: “The owner, in this case, A. E. Troutman Company, a corporation, is held to the highest degree of care in the construction, maintenance, and operation of its elevator in protecting from danger persons carried thereon.” And then, on the other hand, the Trial Court declared that: “The owner of premises who induces others to come onto it by invitation express or implied, owes to them the duty of reasonable or ordinary care to keep the premises in a safe and suitable condition so that they will not be unnecessarily or unreasonably exposed to danger; but the land owner or occupier cannot be held liable unless there is proof that the plaintiff was injured through his negligence.”
The Majority seeks to find excuses for the ambivalence of the Trial Court’s instructions by saying that although it did submit the “ordinary, reasonably prudent man test,” which, of course, is wrong, it did later “emphatically” say that “in Pennsylvania the owner of a passenger elevator is held to the highest degree of care in the operation of its elevator in protecting from danger persons carried thereon.” But the emphasis was really on the other side. After the Trial Court
The Majority agrees that the plaintiffs are right in asserting that “an erroneous statement of law is not cured by a conflicting one which correctly states the law, and may be the basis for reversal,” but it then goes on to say: “but this is so only if the correction is not made clear to the jury. If, as here, the court has distinctly corrected the error so as to leave no doubt as to the law to be applied, we will not reverse.” Let us see how clearly the Trial Court corrected the error it had made “so as to leave no doubt as to the law to be applied.” When the attorney for the plaintiffs complained about the incorrect charge on the point under discussion, the Trial Court said: “That point dealing with that as a general proposition of law, as a general proposition is the law and we affirmed it as such. However, the case from which that principle of law is taken does not involve an elevator but rather involves the matter of a step, and we say to you that while it is true as a general proposition, when we deal with an elevator there is a much higher degree of care in the use and operation of that which is in the control of a store or its servants and that standard of care which deals with the elevator the Court has defined for you at length in the quotation of the law cited in the charge, and that, members of the jury, is the law you will ap
The Majority says that after the Trial Court charged on the law of negligence and contributory negligence “it declared that the plaintiff was ‘aided . . . by a presumption of negligence similar to that arising in the case of a common carrier.’ ” Here the Trial Court was following ipsissimis verbis a decision of the Supreme Court (McKnight v. S. S. Kresge Co., 285 Pa. 489, 494). How many jurors have the education which would permit them to grasp the significance of “aided by a presumption of negligence similar to that arising in the case of a common carrier”? What does the average juror know about the “presumption of negligence” which arises “in the case of a common carrier”? Reading instructions to a jury from a book intended only for judges and persons highly trained in jurisprudence is like delivering a lecture to ten-year-olds on integral calculus.
Before taking from the book the sentence above quoted, the Trial Court read: “Since the owner of an elevator is not the insurer of safety of persons carried on the elevator, the burden of proving negligence is on the plaintiff.” After completing his reading from the State Report, the Trial Judge then did make something very clear. He said: “The definition of the word ‘insurer’ is merely this. There is not an absolute liability on a department store to anyone who may be hurt on the premises and the plaintiff in this or any case of this kind is not entitled to recover a verdict at the hands of a jury merely because she or he or they were injured in a store such as this.” The Trial Judge did not explain to the jury any other part of the quotation with its technical language, but he emphasized the proposition that the store was not an insurer. He said further: “There is a duty, of course, on a store
What this Court said in Randolph v. Campbell, 360 Pa. 453, 458, is particularly applicable here: " 'It is a primary duty of the trial judge — a duty that must never be ignored — in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide ... A trial judge’s charges which are inadequate or not clear, or which tend to mislead, are well recognized grounds for reversal. . . 'When the issues in either a criminal or a civil case are not clarified in the judge’s charge, the charge is of very little value in the administration of justice though it may contain no prejudicial error. A charge may be technically correct and yet be to the jury meaningless and useless.’ ”
A person who is injured by any device which is part of the mechanics of a running elevator is not required to prove wherein the device was defective or the ele
And then, finally, the Majority apparently believes that the Trial Judge discharged all his obligations to law and to justice by asking of the attorneys at the termination of his charge: “Now, gentlemen, are you satisfied?” What is an attorney to do when the Judge asks him in the presence of the jury if he is satisfied? Is he to arise and declare: “Your Honor, I am far from satisfied. I believe Your Honor’s charge is one-sided, inadequate and unjust.”
I believe that the appellate courts should utterly ignore this crippling question put by judges to lawyers. Whether the question is sincerely put to assist the lawyer in the cause of justice or insincerely put so as to disable the lawyer in his appeal is of no consequence. It should be treated as the superfluous persiflage which in many instances it is.
Anyone who rides in an elevator is at the mercy of the operator of the apparatus and the mysterious forces which give it power. A litigant in the courtroom is equally as helpless before the awesome power of the judge. It would appear that Mrs. Black was as unfortunate in the courtroom as she was in the elevator shaft. At any rate, the record is far from proof .that her case was presented to the jury in accordance with all the care necessary to insure an intelligent, responsible, and impartial verdict. Hence I dissent.
Italics mine.