               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ronit Chaudhuri,                          :
                    Appellant             :
                                          :   No. 1467 C.D. 2015
             v.                           :
                                          :   Argued: December 7, 2015
Capital Area Transit, and                 :
Cumberland-Dauphin-Harrisburg             :
Transit Authority, and Maria Matias       :


BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                            FILED: January 7, 2016


             Ronit Chaudhuri (Plaintiff) appeals from the April 28, 2015 judgment
entered following the denial of his post-trial motions by the Court of Common Pleas
of Dauphin County (trial court). Plaintiff contends that the trial court committed
reversible error in instructing the jury. For the reasons that follow, we affirm.


                                      Background
             The trial court set forth the background of this case as follows:

             On July 13, 2011, Plaintiff initiated this action by the filing
             of a complaint in negligence against Defendants for injuries
             he sustained in a motor vehicle/pedestrian accident. The
             accident occurred on August 19, 2010. Plaintiff was a
             passenger on a northbound public transit bus owned by
             Defendants Capital Area Transit (“CAT”) and Cumberland-
             Dauphin-Harrisburg       Transit      Authority      (“Transit
              Authority”). The bus stopped just south of the intersection
              of North Third Street and Riley Street in the middle of the
              block at one of its designated bus stops in Harrisburg.
              Plaintiff exited the bus and attempted to cross North Third
              Street behind the bus which he had just exited.

              At the same time, a second bus owned by Defendants CAT
              and Transit Authority and operated by Defendant Maria
              Matias was travelling southbound on North Third Street.
              The side view mirror of the southbound bus struck Plaintiff
              in the face as he was crossing the street in the middle of the
              block and knocked him unconscious to the ground. Plaintiff
              suffered a number of injuries to his face, wrist and forearm.
              Plaintiff sued Defendants to recover damages caused by the
              accident.

              A jury trial was held from September 15 through September
              19, 2014, which [the court] presided over. The jury
              returned a verdict finding Plaintiff seventy-five percent
              (75%) negligent and Defendant Maria Matias twenty-five
              percent (25%) negligent.

              On September 26, 2014, Plaintiff filed a timely Motion for
              Post-Trial Relief arguing that the jury verdict in favor of
              Defendants was due to [the court’s] errors in (1) instructing
              the jury regarding the law on pedestrians; (2) instructing the
              jury regarding credibility of witnesses; and (3) allowing
              Defendants’ accident reconstruction expert, Matthew
              Daecher, to testify beyond the scope of his report.
(Trial court op. at 1-2.)
              On December 29, 2014, the trial court denied Plaintiff’s post-trial
motions for a new trial. On April 28, 2015, Plaintiff filed a praecipe to enter
judgment in favor of Defendants.1



       1
         Under our comparative fault scheme, if a plaintiff’s percentage of contributory negligence
is greater than a defendant’s percentage of negligence, the plaintiff cannot recover damages from
the defendant. See Section 7102(a) of the Judicial Code, 42 Pa.C.S. §7102(a).



                                                2
                                            Discussion
               On appeal to this Court,2 Plaintiff renews two of the challenges that he
raised in his post-trial motions pertaining to the trial court’s instructions to the jury.
               Initially, we note that a trial court has wide discretion in phrasing jury
instructions. Gaylord ex rel. Gaylord v. Morris Township Fire Department, 853 A.2d
1112, 1115 (Pa. Cmwlth. 2004).

               It is clearly the law of this Commonwealth that when
               reviewing a trial judge’s charge to the jury it must be
               viewed as a whole. A reviewing court will seldom reverse
               the judgment of a jury based on error in a charge unless that
               error is one which provided incorrect or misleading
               statements as to a material fact.

               [J]ury instructions must be upheld if they adequately and
               accurately reflect the law and are sufficient to guide the jury
               in its deliberations . . . . Unless the charge as a whole can be
               demonstrated to have caused prejudicial error, there will not
               be a reversal for isolated inaccuracy. A charge should be
               found adequate unless the issues are not made clear to the
               jury; the jury is confused by what the judge said or there is
               a statement in a charge that amounts to a fundamental error.
Clack v. Department of Transportation, 710 A.2d 148, 152-53 (Pa. Cmwlth. 1998)
(citations omitted). See Commonwealth v. Williams, 732 A.2d 1167, 1187 (Pa. 1999);
Dietrich v. JI Case Co., 568 A.2d 1272, 1276 (Pa. Super. 1980).




       2
           Our scope of review of the denial of post-trial motions is limited to determining whether
the trial court abused its discretion or committed an error of law. Hunter v. City of Philadelphia, 80
A.3d 533, 536 n.7 (Pa. Cmwlth. 2013).



                                                  3
                    Instruction regarding a pedestrian’s legal duty
             Plaintiff first argues that the trial court erred in explaining to the jury
negligence law as it pertains to pedestrians crossing a street outside of a designated
crosswalk.
             Here, at the charging conference, Plaintiff and Defendants jointly
submitted that sections 3301(a)(2), 3361, and 3543(a) of the Motor Vehicle Code, 75
Pa.C.S. §§3301(a)(2), 3361, and 3543(a), would be relevant to the issue of negligence
per se and that the jury should be instructed on these provisions. (Plaintiff’s brief at
7.)
             Section 3301(a)(2) of the Motor Vehicle Code provides: “Upon all
roadways of sufficient width, a vehicle shall be driven upon the right half of the
roadway except as follows . . . [w]hen an obstruction exists making it necessary to
drive to the left of the center of the roadway, provided the driver yields the right-of-
way to all vehicles traveling in the proper direction upon the unobstructed portion of
the roadway within such distance as to constitute a hazard.” 75 Pa.C.S. §3301(a)(2).
             Section 3361 of the Motor Vehicle Code reads:

             No person shall drive a vehicle at a speed greater than is
             reasonable and prudent under the conditions and having
             regard to the actual and potential hazards then existing, nor
             at a speed greater than will permit the driver to bring his
             vehicle to a stop within the assured clear distance ahead.
             Consistent with the foregoing, every person shall drive at a
             safe and appropriate speed when approaching and crossing
             an intersection or railroad grade crossing, when
             approaching and going around a curve, when approaching a
             hill crest, when traveling upon any narrow or winding
             roadway and when special hazards exist with respect to
             pedestrians or other traffic or by reason of weather or
             highway conditions.
75 Pa.C.S. §3361.


                                           4
             Section 3543(a) of the Motor Vehicle Code, entitled “Pedestrians
crossing at other than crosswalks,” states: “(a) General rule. – Every pedestrian
crossing a roadway at any point other than within a crosswalk at an intersection or
any marked crosswalk shall yield the right-of-way to all vehicles upon the roadway.”
75 Pa.C.S. §3543(a).
             The first two statutory provisos relate to the obligations of a driver,
while the third, 75 Pa.C.S. §3543, refers to the obligation of a pedestrian who crosses
a street outside a crosswalk. Plaintiff contends that the trial court’s charge with
respect to a pedestrian’s duty was in error.
             In the opening portion of the trial court’s charge to the jury, the trial
court explained that the outcome of the case will depend on which version of the
accident the jury chooses to find occurred, given the conflicting testimony and
accounts of what happened. (See Reproduced Record (R.R.) at 95a-101a.) The trial
court informed the jury that, in light of the evidence adduced in the case, “credibility
will probably be the most important thing that you really have to grapple with.”
(R.R. at 99a.)
             After describing to the jury the concepts of negligence under a
reasonable person standard and negligence per se based upon a violation of a statute,
the trial court instructed the jury on sections 3301(a)(2) and 3361 of the Motor
Vehicle Code, explaining that a driver has a general duty to remain on the right-half
of the roadway and to maintain a speed that is reasonable given the conditions of the
roadway. The trial court informed the jury that it must determine whether there were
obstacles on the road and whether an obstacle was a basis for Defendants’ bus
moving into the right lane, if, in fact, it did cross over into the right lane. The trial
court further informed the jury that it must determine the conditions of the roadway



                                               5
as they existed at the time of the accident and to decide whether Defendants’ bus was
moving at a safe speed. (R.R. at 106a-11a.)
            The trial court then instructed the jury as follows:

            The third [statutory] provision [75 Pa.C.S. §3543(a)] is any
            pedestrian crossing a roadway at any point other than within
            a crosswalk – again, it is not at issue, this was not a
            crosswalk. This would be a place other than a crosswalk –
            shall yield the right of way to all vehicles on the roadway.

            You have seen the crosswalk areas with signs. There is
            clearly a preference to have pedestrians to cross at the
            crosswalk, because they are clearly marked and
            everybody at those intersections is aware they must yield
            to pedestrians in the crosswalk. When you are outside of
            that, then there are certain risks that go.

            Again, you are the judges of the circumstances and risks
            and what a reasonably careful and prudent person would do
            under the circumstances.

            Those are the three statutes. If you find that one of the
            parties violated one of those respective provisions, then you
            shall find that they [sic] are negligent. If they are violated,
            then it is negligence. If it’s not violated because of the way
            it is worded or the way you find the facts, then it doesn’t
            bind you. Then negligence is a separate determination
            [and] you go back to that original definition of what a
            reasonable, careful and prudent person would do under
            those circumstances.
(R.R. at 111a-12a) (emphasis added).
            At the conclusion of the charge, Plaintiff’s counsel objected to the trial
court’s comments, and the trial court stated that its comments were consistent with
case law submitted by Defendants. (R.R. at 125a-26a.)
            During deliberations, the jury submitted a request, “Can we please
receive the statutory law in play for this case.” (R.R. at 132a.) The trial court


                                           6
decided to read the three statutes to the jury, (R.R. at 132a-36a), without objection
from Plaintiff, and told the jury that these “are the three statutory provisions that
apply or potentially apply to the fact situation at hand.” (R.R. at 136a.) On two
occasions, the trial court recited section 3543(a) of the Motor Vehicle Code verbatim:
“Any pedestrian crossing a roadway at any point other than within a crosswalk at an
intersection or any marked crosswalk shall yield the right-of-way to all vehicles upon
the roadway.” (R.R. at 136a.)
             Plaintiff contends that the above-highlighted portion of the instruction
“effectively directed the jury to find [Plaintiff] negligent for crossing in the middle of
the block” or “to find that [he] failed to exercise the requisite care by choosing to
cross in the middle of the block.” (Plaintiff’s brief at 8-9.) We disagree.
             We first observe that the trial court’s remark regarding the “preference”
that a pedestrian cross at a crosswalk, and a pedestrian’s duty to yield when crossing
outside of a crosswalk, finds strong support in the case law. In Bressler v. Dannon
Yogurt, 573 A.2d 562 (Pa. Super. 1990) (en banc), the Superior Court reiterated: “It
is well established that where a pedestrian traverses a street at other than a regular
crossing he is bound to exercise a higher degree of care for his own safety than would
be the case were he crossing at an intersection. The reason for the rule is apparent for
he is crossing at a place where vehicular traffic could not be expected to anticipate a
pedestrian.” Id. at 567 (citations omitted). Similarly, in Barney v. Foradas, 451 A.2d
710 (Pa. Super. 1982), the Superior Court explained: “[A] pedestrian crossing a
highway within a business or residence district at any other point other than a
crosswalk, shall yield the right of way to vehicles upon the highway. . . . A person
having the right of way has the right to presume that others will comply with the duty




                                            7
to recognize it and yield to it.” Id. at 712 (citations omitted). Therefore, the trial
court’s statements are consistent with the principles espoused in Bressler and Barney.
             Perhaps more importantly, when the charge is considered as a whole, the
trial court’s objected-to statement is merely a passing comment that was immediately
succeeded with qualifying statements. For example, the trial court sufficiently and
explicitly explained that it is the jury’s duty (as “the judges of the circumstances”) to
determine whether Plaintiff violated the statute and/or exercised due care when
crossing the street. When the jury sought reinstruction during deliberations, the trial
court read the jury the three statutes, including section 3543(a) of the Motor Vehicle
Code twice verbatim, and informed the jury again that the applicability of the statutes
depends upon its determination of the facts. In Pennsylvania, “the law presumes that
the jury will follow the instructions of the court.” Commonwealth v. Brown, 786
A.2d 961, 971 (Pa. 2001).
             Notably, the trial court never suggested that Plaintiff violated the statute
or recommended that the jury must find that the Plaintiff was contributorily negligent
based upon the fact that he did not cross at a crosswalk. Instead, the trial court
simply highlighted that when an individual crosses the road at a place other than a
crosswalk, the individual has to yield the right of way to oncoming vehicles and has
to exercise due care in crossing the street. These instructions are in accordance with
and accurately reflect the law. Therefore, viewing the charge in its entire context, we
conclude that the trial court’s instructions did not tend to mislead the jury or
recommend that the jury find Plaintiff contributorily negligent.




                                           8
                       Instruction regarding witness credibility
              Next, Plaintiff argues that the trial court erred in evaluating and
commenting upon the testimony of a witness, Timothy Hammaker, the investigating
police officer.    Officer Hammaker prepared a police report, which, due to the
officer’s lack of independent recollection, was read into the record at trial. Plaintiff
contends that the trial court’s comments usurped the role of the jury and “essentially
instructed [it] to discount [the officer’s] testimony due to lack of recall and other
factors.” (Plaintiff’s brief at 10.)
              Here, after describing to the jury its role as fact finder and obligation to
assess the credibility of the witnesses, (R.R. at 98a-101a), the trial court commented:

              I was kind of struck by the police officer who had not really
              a real recollection of the events, but relied upon his police
              report to refresh his recollection or to state what occurs.
              Again, that doesn’t make him a bad police officer. It means
              he is somebody that had a lot of cases over a long period of
              time and honestly answered the question that he didn’t have
              a current recollection, but that he believed the stuff that he
              put in his report was accurate.

              Again, common sense. That’s why we take notes. They are
              there to assist us where we can. If not, you have to rely on
              the notes and hope you were accurate at the time.

              Again, you will be the judge of those facts. How we put
              those things down, it is tough because he was not able to
              say that he had a current recollection. So you have to judge
              what he had in the police report based upon, again, your
              common sense, whether it fits in and the understanding that
              – I don’t think he was a traffic officer, but a patrol officer.

              I don’t begin to understand the different roles, but I use that
              as an example because, clearly, he was a neutral party that
              shows up and even he did not have a clear recollection of
              the events from years before.



                                            9
             So those are factors for you to consider.
(R.R. at 101a-02a.)
             At the conclusion of the charge, Plaintiff’s counsel objected to the trial
court’s comments regarding Officer Hammaker’s inability to testify from present
recollection and reliance on statements that he wrote in the police report. (R.R. at
124a-25a.) Defendants’ counsel also objected to the trial court’s comments, asserting
that they had a tendency to bolster Officer Hammaker’s credibility because he read
from a police report. (R.R. at 125a-26a.)
             In response, the trial court stated that it “will reiterate, before sending the
jury out, that it is their recollections of the facts that will control,” (R.R. at 126a), and
counsel for both parties voiced no further objections. The trial court then offered a
cautionary, or ostensibly curative, instruction:

             Ladies and gentlemen of the jury, in the event the Court
             made reference to any witnesses or facts and used it for
             illustrative purposes, keep in mind that your recollection of
             the witnesses, your evaluation of their credibility is solely
             yours. The Court was not expressing any opinion one way
             or the other as to how you should view it. It was an attempt
             by the Court to try to show the process by which facts are
             applied to the law, so please don’t draw anything from that.

(R.R. at 127a.) Plaintiff’s counsel did not make an objection or exception to this
supplemental charge.
             Upon our reading of the trial court’s comments concerning Officer
Hammaker, these comments, if anything, were more beneficial to Plaintiff than
Defendants because they basically justified the officer’s lack of recollection and
reliance on the police report as an evidentiary matter. See R.R. at 101a (stating that
the officer’s reliance on the report “doesn’t make him a bad police officer. It means
he is somebody that had a lot of cases over a long period of time and honestly


                                             10
answered the question that he didn’t have a current recollection, but that he believed
the stuff that he put in his report was accurate.”); Commonwealth v. Proctor, 385
A.2d 383, 385 (Pa. Super. 1978) (discussing the procedure to refresh a witness’s
recollection). In addition, the trial court, immediately after issuing its comments, was
insistent that it was the jury’s responsibility (as “the judge of those facts”) to
determine the probative value of the statements in the police report. Given these
circumstances, we cannot reasonably draw the inference that the trial court suggested
that Officer Hammaker’s testimony relaying the police report was not credible. Nor
can we conclude that Plaintiff suffered discernable prejudice as a result of the trial
court’s remarks. See Spearing v. Starcher, 532 A.2d 36, 40 (Pa. Super. 1987) (“To
constitute reversible error, a jury instruction must be shown not only to have been
erroneous but also harmful to the party complaining.”).
             Moreover, after Plaintiff’s objection, the trial court issued an immediate
cautionary instruction to correct any possible, perceived prejudice to Plaintiff. In this
instruction, the trial court clearly reaffirmed that it was not expressing any opinion on
the credibility of the witnesses and that it is the jury’s sole prerogative to determine
credibility. See Harsh v. Petroll, 840 A.2d 404, 432 (Pa. Cmwlth. 2004) (explaining
how a cautionary instruction cures unfair prejudice to a party); see also Mount Olivet
Tabernacle Church v. Edwin L. Wiegand Division, 781 A.2d 1263, 1275 (Pa. Super.
2001).   Plaintiff did not object to this supplemental instruction, seek a further
instruction, or request a mistrial. Consequently, the law presumes that Plaintiff was
satisfied with the trial court’s cautionary instruction and cannot now complain on
appeal that the supplemental instruction was inadequate to cure the prejudice, if any,
that he may have suffered from the trial court’s prior remarks. See DiSerafino v.
Bucyrus-Erie Corporation, 470 A.2d 574, 577 n.2 (Pa. Super. 1983) (“[T]he fact is



                                           11
appellant did take specific exception to the original instruction; he then failed to
renew his objection after the recharge was given. By his conduct, appellant indicated
to the court that he was satisfied with the recharge. . . . This failure to specifically
object to the recharge waives appellate review of this allegation of error.”); accord
Mount Olivet Tabernacle Church, 781 A.2d at 1275 n.12. Here, too, by his conduct
Plaintiff indicated that he was satisfied with the trial court’s recharge. Therefore, on
this record, we conclude that the trial court did not commit reversible error in
charging the jury on witness credibility.


                                       Conclusion
             We conclude that Plaintiff’s allegations of error lack merit because the
trial court did not err in charging the jury, it corrected any potential for prejudice in
its cautionary instruction, and Plaintiff waived any objection to the trial court’s
recharge. Hence, we find that there is no basis upon which to disturb the jury’s
verdict and judgment entered in favor of Defendants.
             Accordingly, we affirm.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                            12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ronit Chaudhuri,                        :
                   Appellant            :
                                        :    No. 1467 C.D. 2015
            v.                          :
                                        :
Capital Area Transit, and               :
Cumberland-Dauphin-Harrisburg           :
Transit Authority, and Maria Matias     :


                                      ORDER


            AND NOW, this 7th day of January, 2016, the April 28, 2015
judgment entered against Ronit Chaudhuri in the Court of Common Pleas of
Dauphin County is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
