*1 prohibition application agricultural no has intended. Such a construction districts agri- completely nullify destroy the entire gives provision Every of the ordinance. farm cultural turkeys, fer- odors of manure, cattle, chickens, off uninitiated all of which are offensive to the tilizers etc., agricultural Such aroma is “the usual” nostril. areas. n An must like a statute, construed, ordinance, provisions: Statutory give possible effect to all of its supra, 51 & and, Sections Construction Act, Commonwealth, McHugh, these the inevitable considerations,
Guided township prohibited therein when the clusion is that any offensive reason or business that is trade intend these it did not words odor, noise, etc., inseparable from and noises that are such odors include activity. agricultural ordinary farming or or error of of discretion law- find no abuse adjustment. the board the decision court below is reversed. order of the Appellant, Stegmuller, Davis. *2 April 1962. Before C.
Argued J., Jones, Bell, Eagen and JJ. Cohen, O’Beien, appellant. for Miles Warner, him McKinley, Gamp- J. Jr., Swartz, William appellee. bell for Henry, & 1962: June Eagen, for defendant-appellee sued the Plaintiff-appellant the latter’s alleged negligent injuries caused resulted in a defend- trial verdict for the A jury duct. judgment entered follow- appeal is ant. trial. a new The errors assigned denying order ing to the judge’s relate liability. issue of an unfortunate The accident. arises The case occurrence Avere its liti- witnesses the proprietor of a small auto- The gants. mobile service station. car The defendant his drove to plaintiff’s place of business requested or motor engine inspected be because it was knocking and making an unusual noise. testimony fol- may summarized as
lows: he the hood; lifted the engine was running; “shut your engine off”; defendant entered the seated himself and automobile, stopped engine; then started to work on the fan belt which was twisted; after “nearly minute” the defendant without any started warning of plaintiff’s motor; fingers became engaged machinery amputated. and was moving The defendant’s testimony description of the incident substantially the same as plaintiff’s, *3 except he testified that he restarted the motor almost pause a of instantly, one or two seconds, it He after he off. also stated shut that he was not plaintiff the had aware that begun work on the motor interval. during the
It our conclusion that the is judge inadvert instructed erroneously the ently in jury important re that spects justice requires that a new trial be For he told instance, the granted. jury: “The burden the plaintiff rests upon satisfy you by the weight of in the the believable evidence case that the accident the carelessness on by was caused the part of the de not contributed to fendant and by any carelessness or the the part plaintiff.1 negligence If you find of his own carelessness plaintiff, the contributed to the the the injuries, accident cannot recover of This, defendant.” course, from is the not the law. the proving of existence of The burden contributory the defendant: upon is Good v. Pittsburgh, 2d 101 255, Pa. Heimback v. 382 Peltz, 1
270
384 Pa. 121 A. 2d In men 114 the last 308, tioned, held, that we that instructions stated case, which it case “to a duty of the make was free of negligence” misleading contributory in v. 513, Brown erroneous.. com 2d 831 the trial court we ruled that (1961), A. “ ‘the mitted error in that reversible charging free a which is show case obliged ” See negligence.’ Grochowski contributory also, wherein Ardes, (1961), that of contribu stated tory duty it is the negligence is an issue at that trial, of that the trial court instruct clearly burden of proof upon defendant. the.
(cid:127)We are
that
in
of the
cognizant
fully
did
correctly
state
regard
point
study
-to the
under discussion. However,
in toto
demonstrates
placed
tenor
the entire charge’ erroneously
neg
disproving
contributory
burden
existence
ligence upon
plaintiff.
repeatedly
We have
it is
must be read as a whole and that
Again
thereof that
is controlling.
effect
Hisak
Transit
Lehigh Valley
Co.,
er
pointed out
we
that “Where
(1948),
palpable
of a
roneous instruction consists
misstatement
not cured
or contra
it is
law,
conflicting
*4
correctly states the
on the point
one which
dictory
If
basically
of the court
involved.”
exception
fundamentally
error,
suffi
rights
prejudiced
protect
party:
to
cient
Judgment Dissenting Bell : Chief I the judgment. affirm en- in its as a whole and Considering error. I find no reversible tirety Corporation Hemphill, Broadway Maintenance Appellant.