Black v. A. E. Troutman Co. , 385 Pa. 138 ( 1956 )

Opinion by

Mr. Justice Arnold,

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.

Wife-plaintiff went to defendant’s store to make purchases, and ascended from the first to the third floor by means of an elevator operated by a female employe of defendant. As she was alighting the door was released and struck and injured her. Plaintiffs contended, and sought to prove, that the accident resulted solely from the negligence of the employe in releasing her grasp on the door before the wife-plaintiff was safely out of the elevator. The defendant, on the other hand, offered proof that the wife-plaintiff “bumped” the employe’s hand in such manner that, as a result thereof, she released her grasp on the door.

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 elevator, . . . the burden of proof¹ is upon the carrier ... to show that such injury did not result from Us negligence or the negligence of Us employee.” (Italics supplied). Actually the burden of proving negligence rested with plaintiffs, who were aided by the presumption. It was defendant’s duty then to explain or show how the accident occurred. Thus the court’s charge gave plaintiffs a benefit to which they were not entitled.

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 emphasized defendant’s testimony; and by so doing instructed the jury, in effect, to find for defendant. But the particular testimony was again called to the jury’s attention upon plaintiffs’ specific request for clarification. In addition the court clearly stated to the jury what was necessary to establish contributory negligence, and left to the jury the determination of its existence. Again in this instance plaintiffs have taken an isolated statement of the court and assigned it as error. This they cannot do. Taken with the remainder of the charge, its meaning was clear to the jury.

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.

1 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.