Marks v. Swayne

OPINION

ZAPPALA, Justice.

We granted allocatur in this case to reexamine the use in a negligence action of a jury instruction that a deceased or incapacitated plaintiff is presumed to have been exercising due care at the time of his injuries. Although we now hold that such an instruction should not be given, we find that in this case the instruction, read in the context of the entire charge, was not so prejudicial as to require reversal.

Donald L. Marks was killed when the tractor/backhoe he was operating overturned and crushed him. The tractor belonged to Marks’s neighbor, Walter F. Merriman.…