# White v. Southeastern Pennsylvania Transportation Authority

> Supreme Court of Pennsylvania · October 28, 1986 · 359 Pa. Super. 123

URL: https://www.frixlaw.com/law-library/cases/9759013

## Case

- **Full name:** Cynthia WHITE, a Minor by Her Parent and Natural Guardian Rebecca STEVENS and Rebecca Stevens in Her Own Right v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Philadelphia Electric Company, and City of Philadelphia. Appeal of SEPTA
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 28, 1986
- **Citations:** 359 Pa. Super. 123; 518 A.2d 810; 1986 Pa. Super. LEXIS 12742
- **Precedential status:** Published
- **Opinion:** Concurring in part by Wieand
- **Judges:** Wieand, Beck, Johnson
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9759013

## How later opinions describe it (automated extraction)

- holding that violation of a statute may serve as the basis for negli gence per se

## Opinion text

WIEAND, Judge,
concurring and dissenting:
I agree with the majority that the trial court committed error when it instructed the jury that it could find SEPTA negligent if SEPTA’s driver failed to have the bus under such control that he could bring the bus to a stop within the assured clear distance ahead. This rule, which the trial court defined for the jury, has application to static or essentially static objects appearing within the assured clear distance on the roadway in front of the driver of a vehicle. The rule has no application to the rapid, perhaps erratic, approach of a vehicle moving in the opposite direction. Mickey v. Ayers, 336 Pa.Super. 512, 518 , 485 A.2d 1199, 1203 (1984); Adams v. Mackleer, 239 Pa.Super. 244, 250 , 361 A.2d 439, 442 (1976); Turner v. Smith, 237 Pa.Super. 161, 165-169 , 346 A.2d 806, 808-809 (1975).
*140 However, I am unable to agree with the majority that this error was harmless. The trial court’s jury instructions expressly permitted the jury to find SEPTA negligent for violating a principle of law which, as the majority concedes, had no application to the facts. This was fundamental error. “In determining whether fundamentally erroneous instructions require the grant of a new trial, whether such instructions did or did not bring about the complained of verdict is not the question. If it appears that such instructions might have been responsible for the verdict, a new trial is mandatory.” Jones v. Montefiore Hospital, 494 Pa. 410, 420 , 431 A.2d 920, 925 (1981) (emphasis in original) (citation omitted), quoting Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 468 , 209 A.2d 279, 282 (1965). See also: Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 382 , 492 A.2d 1382, 1386 (1985) (“If the jury charge is fundamentally erroneous or has a tendency to mislead or confuse rather than to clarify the issues, a new trial will be required so long as that portion of the charge in question might have been responsible for the verdict.”).
Since the jury might have reached its verdict as a result of the erroneous instruction regarding the “assured clear distance ahead” rule, I would reverse and remand for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9759013. Public record. Not legal advice.