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 CumberlandDauphin-Harrisburg Transit Authority (“Transit 
2

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

 

1Under 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).
3

Discussion

On appeal to this Court,2Plaintiff 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).
4

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-ofway 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. 
5

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 
6

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 
7

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 
8

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. 
9

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.
10

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 
11

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 
12

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
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 7

th 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