Delp v. Heath

Dissenting Opinion by

Van der Voort, J.:

This case involves a collision between an automobile driven by a Mrs. Delp and a truck operated by Mr. Heath. While Mrs. Delp was passing the truck, it turned to the left to enter a private driveway, striking Mrs. Delp’s car and injuring her.

The trial judge made a good charge to the jury; however, in part of his charge, he stated as follows:

“On the other hand, if you find that the turn was signaled as required by law and that Mrs. Delp would have seen the signal lights if she had been watching and proceeding as the reasonable, careful, prudent person, then you would find, of course, that Mrs. Delp was contributorily negligent and she could not recover.” [Emphasis supplied]

I believe that when the judge told the jury that if Mrs. Delp was negligent in not seeing the signal lights of the truck they would find “of course” that Mrs. Delp was contributorily negligent and that she could not recover, the use of the words “of course” was highly prejudicial to Mrs. Delp’s case and gave the jury the impression that if she did not see the signal lights she could not recover. In another part of his charge, the judge carefully instructed the jury that in order for contributory negligence to bar recovery it must be a proximate cause of the accident and consequent injury. In the portion of the charge in question, he instructed the jury that if it found that Mrs. Delp negligently failed to see the truck’s turn signals she could not recover. It is quite likely that the jury might find that Mrs. Delp negligently failed to see the signals, that nevertheless such failure was not the proximate cause of the injury but that the failure of the truck driver to see her car or his not giving her a chance to pass his truck or that his failure to yield the right of way to an overtaking vehicle or a combination of these neglects was the proximate cause of the accident and injury. The question of whether or not Mrs. Delp’s negligence, if such there was, was a proximate cause of the accident and consequent injuries was inadvertently foreclosed from the consideration by the jury.

I would reverse the judgment and grant a new trial.

Watkins, P.J., joins in this dissenting opinion.