Yandrich v. Radic

McDERMOTT,

dissenting.

I dissent from the decision of the majority which dismisses this appeal as improvidently granted. Appellants direct our attention to the trial court’s charge on the presumption of due care, which I believe should be examined by this court.

The presumption of due care is not evidence.* That is not to say it has no bearing on evidence offered to rebut it. One of its purposes is to put another to proof overcoming the ancient belief in self-preservative acts. The presumption is a filter through which contrary evidence must pass before it is accepted by the fact finder. Evidence offered must be examined, along with other considerations, in the light thrown upon human actions by this presumption. The presumption does not vanish simply because contrary evidence is offered; that evidence must be accepted before the presumption evaporates, and that one does not lightly put his life at hazard is one of the tests to determine the acceptability and credibility of the evidence proffered to contravene it. It is not simply a vestige of ancient law, but rather a viable test of conflicting evidence and as such has continuing meaning and usefulness. It should be accorded the dignity of its reasons, to wit, that love of life and fear of pain should be weighed against the charge that one flouted due care for his safety. Hence, in this case I would review the charge of the court below and consider whether the presumption can be dispersed so ambiguously as reported:

The law presumes that at the time of the accident causing George Yandrich’s death he was using due care for his own safety. As has been indicated, this is probably founded on the desire for self-preservation for the individual to avoid pain; but, this presumption is not evidence and does not take the place of evidence. If you find by a prepon*279derance of the evidence, as I have described it to you, that the decedent was not exercising such care you will so state in your verdict as I am going to later discuss it with you.

Notes of Testimony at 287.

I believe this charge denigrated the importance of the presumption of due care to such an extent as to eliminate its influence on the jury’s deliberation. In this case the lad died when his bicycle was struck from the rear. Appellee contends the deceased swerved into his path. Death silenced the boy; one who would say the deceased was careless of his life should be heard under the full meaning of the presumption of due care.

As I do not believe that the concept is either obviated or rendered less useful by the doctrine of comparative negligence, I would remand for a new trial in which the charge of the court would amplify the reasons and full meaning of the presumption, as well as, clarify and define the burdens of proof and their interrelating significance.

See Allison v. Snelling, 425 Pa. 519, 229 A.2d 861 (1967). See also, Dilliplaine v. Lehigh Valley Trust Co., 223 Pa.Super. 245, 297 A.2d 826, aff’d, 457 Pa. 255, 322 A.2d 114 (1972); Hodge v. MeBee Co., 429 Pa. 585, 240 A.2d 819 (1968).