dissenting:
I agree with the conclusions of the majority, first, that the evidence of the intoxication of appellant was properly admitted and was not prejudicial and, second, that the trial court properly allowed the introduction of evidence upon the issue of the intoxication of appellant, including the blood alcohol level of appellant. I am not, however, convinced that the “presumption” of 75 P.S. § 1547(d)(3) should not be applied in a civil case. It is, nonetheless, unnecessary to analyze and address my hesitation to accept this conclusion of the majority for the reason that even if, arguendo, the trial court erred in its charge to the jury that the presumption of § 1547(d)(3) was applicable to the pedestrians referred to in 75 Pa.C.S. § 3550, the error was, in my opinion, harmless.
The author of the majority opinion has in his usual fashion provided a careful analysis as well as a most persuasive expression of view for holding that a new trial is necessary. Since, however, the jury returned a specific finding that the defendant driver was not negligent, surely, as the distinguished trial judge declared, the error found by the majority in but a quite limited portion of the charge is harmless. Moreover, I am convinced that however favorably to the plaintiff or unfavorably to the defendant the trial judge may be forced to alter his charge, ninety-nine out of one hundred juries would render a verdict against this plaintiff.
Since we are, of course, precluded from reliance upon such instinct or odds, but are obliged to attempt an erudite articulation of position, I will simply reiterate the rationale for upholding jury verdicts that I earlier expressed in a dissenting opinion in Saylor v. Rose, 319 Pa.Super. 560, 568-569, 466 A.2d 686, 690-1 (1983):
*585The right to a trial by a jury is zealously guarded because the benefits of a trial by jury are not simply theoretical but have through the centuries proven so real as to become self-evident. As a result, our trust in the value of the jury verdict in resolving the type of factual issue here presented — as distinguished from a verdict upon a complex question of medical or product liability— should be near absolute. The founders concluded that a band of the citizenry — peers, says the Magna Carta — is naturally suited to the task of resolving factual disputes, whether the difference in testimony be innocent or influenced by personal interest; in addition, of course, it is an obvious and certain fact that the court room cause— whether it be of an accused or of a litigant — is, if not prudently never left to the sovereign, always more wisely entrusted to the people than to the government of any of its branches.
Once we acknowledge that the value of the jury system is not mere premise but fact, it naturally follows that the verdict of a jury should be considered to be controlling and final. While it is undisputed that a safety valve is necessary and that a trial judge should be able to reject a verdict, that safety valve should be triggered only when there is a gross disparity between the verdict and the evidence or there has been gross and harmful error. Neither of those tests are here met.
* * * * * *
The fundamental purpose of the instructions by a court is to express to the jury in general, survey fashion a basic outline of the applicable principles of law so that the jury might have the benefit of certain essential rules as the members assort the testimony, reflect upon the evidence and assemble a verdict____ If the charge of the court is to achieve the goal of assisting the jury and is not to be considered as a credit balance available for redemption in the event of an adverse verdict, then a verdict should be final, absent a gross shortcoming in the trial — specifically, as earlier noted, unless there is a gross disparity *586between the verdict and the evidence or there has been gross and harmful error.
It cannot reasonably be asserted that there is here a gross disparity between the verdict and the evidence and, for my part, there has been neither gross nor harmful error. Therefore, the verdict should stand.