What the jury ultimately found, of course, is beyond our knowledge. In determining whether erroneous instructions require the grant of a new trial, whether such instructions did or did not bring about the verdict is not crucial. Malat v. Riddell, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966); Vaughn v. Philadelphia Trans. Co., 417 Pa. 464, 468, 209 A.2d 279 (1965). If it appears that such instructions might have been responsible for the verdict, a new trial is mandatory. Sunkist Growers, Inc. v. Winckler Smith Citrus Products Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962); Riesberg v. Pittsburgh Lake Erie R.R., 407 Pa. 434, 180 A.2d 572 (1962). Moreover, the court failed to explain adequately to the jury the application of principles of the law of contributory negligence to various possible factual conclusions at which they might arrive.
We conclude that the instruction on causation given by the trial judge was clearly erroneous, and that appellants were entitled to a Section 323(a) instruction. As we said in Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965): 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: Reisberg v. Pittsburgh Lake Erie R.R., 407 Pa. 434, 180 A.2d 575 (1962).
The record reveals that in every instance the law was adequately stated and both counsel were given sufficient opportunity to request further instructions or to take exceptions if they so desired. Counsel for appellants neglected to ask for any additional instructions on burden of proof when he had the opportunity to do so, and in the absence of a specific request for further clarification of the duties involved we believe the instructions given were sufficient. In their support appellants cite Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969); Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 218 A.2d 303 (1966); and Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 209 A.2d 279 (1965). Apparently, appellants have overlooked the fact that in each of the three cases relied upon we were not faced with the question of whether, as here, additional clarification was required on a given point of law, but rather with the problem of correcting erroneous instructions which had been given.
We are convinced that the trial court's charge to the jury, when read in its entirety, clearly and correctly delineated the issues which were to be left to the jury, with respect to Steel City's liability. See Vaughn v. Philadelphia Transp. Co., 417 Pa. 464, 209 A.2d 279 (1965); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); James v. Ferguson, 401 Pa. 92, 162 A.2d 690 (1960). The second issue raised by the appellant is whether the trial judge wrongfully excluded testimony, based on post-accident inspection, that the wall showed no indication of a pipe chase having been cut.
Reference thereto was unnecessary in this case and only tended to confuse an already difficult issue. Cf. Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963). If erroneous fundamental instructions may have been responsible for the complained of verdict, a new trial is mandatory: Vaughn v. Phila. Trans. Co., 417 Pa. 464, 209 A.2d 279 (1965), and Pedretti v. Pgh. Railways Co., 417 Pa. 581, 209 A.2d 289 (1965). The defendants requested the charge complained of and attempt to sustain it on the authority of De Rose v. Hirst, 282 Pa. 292, 127 A. 776 (1925), and Nixon v. Pfahler, 279 Pa. 377, 124 A. 130 (1924).
Whether the instruction under discussion influenced the jury's verdict is, of course, problematical. However, if it appears that an erroneous instruction might have been responsible for the verdict, a new trial is mandatory: Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 209 A.2d 279 (1965). Judgment reversed and new trial ordered.
In instructing a jury, the primary duty of the trial judge is to clarify the issues and apprise the jury of the legal principles needed to decide the case. Vaughn v. Philadelphia Transp. Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965); Graham v. Sky Haven Coal,Inc., 386 Pa. Super. 598, 609, 563 A.2d 891, 896 (1989), allocatur granted, 525 Pa. 603, 575 A.2d 568 (1990). The trial court has wide latitude in formulating its charge so long as it clearly and adequately covers the law pertaining to the issues raised by the evidence.
The primary duty of the trial judge is to clarify the issues and apprise the jury of the legal principles needed to decide the case. Vaughn v. Philadelphia Transp. Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965); Graham v. Sky Haven Coal, Inc., 386 Pa. Super. 598, 609, 563 A.2d 891, 896 (1989), allocaturgranted, 525 Pa. 603, 575 A.2d 568 (1990). The trial court has wide latitude in formulating its charge so long as it clearly and adequately covers the law pertaining to the issues raised by the evidence.
The relief for an erroneous jury instruction, however, is the award of a new trial. See: Jones v. Montefiore Hospital, 494 Pa. 410, 420, 431 A.2d 920, 925 (1981); Vaughn v. PhiladelphiaTransportation Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965); Commonwealth v. Myers, 376 Pa. Super. 41, 54, 545 A.2d 309, 315 (1988); Hoffman v. Memorial Osteopathic Hospital, 342 Pa. Super. 375, 382, 492 A.2d 1382, 1386 (1985). An erroneous jury instruction, even if adequately preserved by timely objection, does not warrant an arrest of judgment.
Therefore, we must examine the trial court's jury instructions with respect to all possible theories on which the jury was permitted to find in favor of Niles. "If the jury charge [was] fundamentally erroneous or ha[d] a tendency to mislead or confuse . . . a new trial will be required so long as that portion of the charge in question might have been responsible for the verdict." Hoffmanv. Memorial Osteopathic Hospital, 342 Pa. Super. 375, 382, 492 A.2d 1382, 1386 (1985) (emphasis added), citing Jones v.Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981) and Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 209 A.2d 279 (1965). With respect to Niles's claim of title by adverse possession, the trial court not only refused to take this issue from the jury, but it also refused several instructions requested by Fall Creek to the effect that adverse possession of woodland cannot be established by a mere showing of occasional or sporadic use of the land such as for hunting or partial timbering.