(dissenting).
I dissent from the view of the majority that the district court’s charge contained no prejudicial error. As the majority states, this case was tried by each of the parties on the theory that the negligence of the other was the proximate cause of the accident. Plaintiff's allegation of negligence was specifically denied by the defendant which averred that “any injuries sustained were caused by the negligence of Plaintiff.” In its pre-trial statement, defendant particularized its version that the accident was due entirely to the negligence of plaintiff. At trial the evidence adduced by defendant was directed to proving this version of the incident. Nonetheless, the district court, in its instructions to the jury,1 charged sua, sponte that they might find that “this whole unfortunate catastrophe was purely an accident and that no one was careless or responsible legally for damages as a result of the collision.” Though he did not use the term “unavoidable accident,” this is the clear import of the language he used. Plaintiff’s counsel promptly objected to this instruction and renewed that objection in his motion for a new trial. The district court denied both on the ground that he had merely paraphrased the rule that the mere happening of an accident does not prove negligence.
I agree with the majority’s statement that we must examine the charge as a whole, and not isolated portions out of their setting. I further agree that the charge on unavoidable accident was made in amplification of the court’s instructions on burden of proof. But that fact does not mitigate the prejudicial nature of the charge, for the law is clear that if a finding of unavoidable accident is not possible on any theory of the evidence, such a charge constitutes reversible error. Matthews v. Derencin, 360 Pa. 349, 62 A.2d 6 (1948) ; Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500 (1958). See also, 65 A.L.R.2d 1, 12. The sole evidentiary basis for such an instruction in the case at bar, and that given by the district court both in the charge itself and in its oral opinion denying plaintiff’s motion for a new trial, was the testimony that there was fog at or near the scene of the accident. But an examination of this testimony makes it abundantly clear that neither party attributed the accident to the fog, and none of the witnesses so testified. Indeed, the driver of defendant’s truck stated that the fog did not impair his visibility. The testimony of the other witnesses was simply to the effect that fog was present. In sum, there is no evidence in this record which would support a jury finding that the fog was a factor in causing this collision. Accordingly, the charge of the district court was reversible error.
. See n. 3 of the majority opinion.