(dissenting).
I find myself unable to agree with the premise on which the majority bases its conclusion that this case would have to be reversed, namely, that the court in its charge submitted two separate issues to the jury. One of these issues, the majority says, was whether the defendant at the time of the accident suffered a sudden and unforeseeable loss of consciousness, and the other, whether the condition from which he suffered at the time of the accident was the result of an “Act of God.” This, it seems to me, is a mistaken view of the court’s charge. Actually, there was only one issue submitted.
The following excerpts from the charge show convincingly that the single issue submitted was whether the defendant suffered a fainting spell which came so suddenly that he was deprived of the ability to act as a reasonable and prudent person would have acted in continuing to drive his vehicle in the manner that he did after this condition first struck him. In submitting this issue, the court said,
“If you find that the condition which confronted him was such that he had no time or opportunity to stop or cease the operation of the vehicle, and that his mental and physical condition was such that he was not capable of sense perception and judgment and that he did what a reasonably prudent person would have done under the circumstances or should have done under the same circumstances, then his conduct could not be conscious and his condition would be the result of an Act of God and he would not be responsible for the manner in which the automobile was operated and driven when it struck and killed this child.”
The other reference to Act of God in the charge was to the same effect.*
This was giving an incorrect name to the rule, but, though the label may have been a wrong one, it certainly did not make a separate issue.
The majority agrees that the instructions upon the basic issues were substantially in accord with legal principles and that, if the verdict was predicated upon a determination that at the time of the accident the defendant suffered an unforeseeable loss of consciousness, there would be no cause for reversal of the judgment. However, the majority says, we cannot ascertain from the record that this was the basis of the verdict.
It seems to me that under the charge of the court the verdict could have been predicated upon no other theory and could not have had any other basis. Granted that there was no evidence upon which the jury could have found'that the defendant’s condition was attributable to an Act of God as that term is used in the civil law, there was ample evidence to sustain its finding that the defendant’s condition was attributable to an Act of God as that term was defined by the judge in his charge. A jury is supposed to take its definition of a term used in the charge from the judge who uses it. It is not an unwarrantable assumption that this jury did not consult the law reports and that they had no idea that “Act of God” meant anything other than what the judge said it meant.
The fact that no exception was taken to the charge places the case in a position in which this court would have to find not only that there was error but that the error was of such a fundamental nature and so likely to accomplish a gross miscarriage of justice -that an objection to the charge was unnecessary.
There is no doubt, as the majority opinion recognizes, that the judge correctly charged the jury as to the applicable law of negligence and as to the burden of proof upon the defendant to *101overcome the inference of negligence arising from the fact that his car struck the boy on the sidewalk. I think not only was the court’s misnomer of principles correctly stated not error of any such magnitude, but it seems to me that it was quite harmless and that the injustice, if any, would be to this defendant in compelling him to defend himself in another trial after a jury has found a verdict in his favor after a perfectly correct charge upon the basic matters of what constitutes negligence and where the burden of proof lies, merely because the judge gave the legal principles involved an incorrect name — a name the meaning of which the jury could have known nothing beyond what the judge told them. I do not think that Rule 51 should be by-passed by a finding of such a purely technical error.
“You should consider as Mr. Hennessy was driving his car through Grove City whether or not when this condition arose, whether it was or was not an Act of God, something that he had no idea, no reason and no basis to think was ever going to happen to him.”