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BRUECKNER v. PITTSBURGH (11/15/51)

November 15, 1951

BRUECKNER
v.
PITTSBURGH, APPELLANT



Appeals, Nos. 121 and 122, March T., 1951, from judgment of Court of Common Pleas of Allegheny County, October T., 1948, No. 566, in case of James Brueckner, by his guardian, Marie P. Brueckner et vir. v. City of Pittsburgh. Judgment reversed.

COUNSEL

James G. Legnard, Assistant City Solicitor, with him Anne X. Alpern, City Solicitor, for appellant.

Martin E. Geary, with him Clyde P. Bailey and Bailey & Geary, for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Chidsey

[ 368 Pa. Page 555]

OPINION BY MR. JUSTICE CHIDSEY

James Brueckner, age three and one-half years, was injured as a result of a fall from his tricycle either on the sidewalk or on the street immediately in front of his home in the City of Pittsburgh. Suit was instituted against the City on his behalf by his guardian and by his mother and father individually. At a trial before a jury, diametrically opposing stories of the manner in which the accident occurred, as well as the precise place of the accident, were adduced. Defendant, the City of Pittsburgh, on cross-examination of the mother, confronted her with a letter written to the Department of Public Safety and she admitted her signature thereon

[ 368 Pa. Page 556]

    to be genuine. She was also shown a second statement purportedly given by her and containing her signature and another statement purportedly given by the sister of the boy and upon which was affixed the mother's signature as a witness. She denied having signed both statements and denied seeing the representative of the City, pointed out to her in open court, as the man who interviewed her and her daughter and secured their statements and signatures. Permission was requested from the court to permit the jury to see the admitted signature and the purported signatures on the asserted statements, thus to enable the jury to determine whether the signatures were made by one and the same person.

Counsel for plaintiffs objected, stating: "I think where the witness has denied she has signed the paper in question it is not admissible under any circumstances.I don't think the City is entitled to prove signatures other than through the testimony of the signer herself or by way of expert testimony, which they have not offered." Counsel for the City then offered the papers in evidence for the purpose of permitting the jury to compare the three signatures. The court stated: "It is irrelevant. Motion denied." Subsequent offer was made by counsel for the City of the statements purported to be signed by the mother and the sister. Objection was again made for the reason that the witness denied signing the statements and denied the signatures thereon.The court stated: "In view of the direct contradiction by the plaintiff that she signed the statements in question or similar statements, the Court is not of the impression that there is enough to submit to the jury the credibility of either witness on that particular issue. Under those circumstances the motion is refused and an exception noted to the defendant."

The court in its charge to the jury said, with regard to the signing of the statements: "There was some testimony

[ 368 Pa. Page 557]

    here that an investigator on the part of the City of Pittsburgh spoke with Mrs. Brueckner about the accident and she was questioned on the nature of the accident. It was testified by the investigator that she signed a statement. She denied having signed that statement, and that statement is not before you for any deliberation. So, we want to warn you on that matter. The statement was discussed here on the witness stand but it was not actually introduced into evidence. So, therefore, you merely have the word of one person as against another as to whether the statement was or was not signed, but you do not have the statement itself." The jury returned a verdict against the City. These appeals are from entry of judgment on ...


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