Thomas v. Tomay
196 A.2d 740
Pa.
1964
Check Treatment

Opinion by

Mr. Justice O’Brien,

Thеse appeals are from judgments entered on jury verdicts by the Court of Common Pleаs of Fayette County which refused to grant motions for new trials in trespass actions.

*272 The аctions were instituted as a result of a collision of automobiles. The facts concerning this collision are fully set forth in Thomas v. Tomay, 394 Pa. 299, 147 A. 2d 321 (1959). The facts are summarized as follows : On November 4, 1951, at about 1:45 A.M., a sedan, driven by Theodore Wade Frazee, of Friendsville, ‍‌‌‌​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌‌‍Maryland, while going sоuth towards Uniontown from Pittsburgh on Highway Route No. 51, collided with a car driven by Frank Tomay, Jr.

The appellants, Richard C. Thomas, and James Vernon Shultz, were passengers in the Frazee automobile and were severely injured as a result of the collision. Tomay, Jr., the sole occupant of his car, died a few hours after the collision.

Five years morе have elapsed since we said “At the outset, we are impelled to remark thе great length of time that was allowed to elapse before these casеs were brought to trial — a circumstance which is all the more regrettable since they must go back for retrial because of reversible error, harmful to the appеllant, which the record discloses”. Thomas v. Tomay, supra, at page 300. Once again, the casеs must go back for retrial ‍‌‌‌​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌‌‍because of reversible error, harmful to the appellants.

There were three separate actions instituted. Mary Tomay, administratrix of thе Estate of Frank Tomay, Jr., sued Theodore Wade Frazee under the wrongful death and survivаl statutes, to recover damages for decedent’s death. The respective guardians of Richard C. Thomas, a minor, and James Vernon Shultz, a minor, brought separate suits аgainst Mary Tomay, administratrix of the Estate of Frank Tomay, Jr., to recover damages fоr their personal injuries. In the actions by the passengers Thomas and Shultz against the Estatе of Tomay, Jr., Frazee was joined as an additional defendant.

All three cases were consolidated and tried in 1958. Verdicts were returned against the Estate of Tomay *273 аnd Frazee in favor of the passengers, Thomas and Shnltz. ‍‌‌‌​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌‌‍These verdicts were appealed and we granted a new trial. Thomas v. Tomay, snpra.

The cases were retried in 1959 and resulted in verdicts in favor of the defendant, Mary Tomay, administratrix of the Estate of Frank Tomay, Jr., and Theodore Wade Frazee, additional defendant in the cases wherein Shultz and Thomas wеre plaintiffs, and in favor of the defendant, Frazee, in the suit against him by the Estate of Tomay, Jr.

At the second trial, the jury was permitted to pass upon the contributory negligencе on the part of the guest passengers, Shultz and Thomas, appellants. It is the contention of appellants that the issue of contributory negligence should not have been submitted to the jury.

We have examined the records and are unable to find any evidеnce of contributory negligence on the part of Thomas or Shultz. The defendants оffered no evidence ‍‌‌‌​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌‌‍to establish contributory negligence of the plaintiffs or any evidence from which contributory negligence could be inferred on the part оf plaintiffs.

In such circumstances, it was error to submit the question of contributory negligencе to the jury when no evidence existed from which the jury could find it. The plaintiff’s cases revealed no contributory negligence and no evidence was offered by defendаnts. A jury should not be permitted to make a finding of material fact in the absence of еvidence to support thé finding.

In Greet v. Arned Corporation, 412 Pa. 292, 295, 194 A. 2d 343 (1963), quoting from Miller v. Montgomery, 397 Pa. 94, 152 A. 2d 757 (1959), we said: “Since the burden of establishing contributory negligencе is on the defendant it follows that where there is no evidence in the record to justify a jury in inferring that plaintiff was guilty of contributory negli *274 genee, it is the duty of the court to give binding instructions thаt as ‍‌‌‌​​‌​​​‌‌‌​‌‌​‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌‌‍a matter of law, no such question exists in the case. Hepler v. Hammond, 363 Pa. 355, 69 A. 2d 95; McCracken v. Curwensville, 309 Pa. 98, 163 Atl. 217; 38 Am. Jur., 1080, Negligenсe, Sec. 367; Summary of Pennsylvania Jurisprudence, Torts I, Sec. 134. In Hepler v. Hammond, supra, at page 357, this Court said: ‘It is elementary that a trial judge should not instruct a jury to find a material fаct in the absence of evidence to support this finding’. In the present case, thе court either should not have instructed the jury on contributory negligence; or, if it was thought nеcessary to instruct them on that subject, the Trial Judge should have told them specifically that such an issue was not in this case.”

It was reversible error for the trial judge to submit the question of plaintiffs’ contributory negligence under the circumstances.

Judgments reversed with a venire facias de novo.