Appeal, No. 163, Jan. T., 1952, from order of Court of Common Pleas of Lehigh County, April T., 1950, No. 202, in cash of Dora Panik v. J. Edward Didra, Jr. Order affirmed.
Paul A. McGinley, for appellant.
E. G. Scoblionko, with him Everett Kent and Scoblionko & Frank, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
At the trial of this action for damages for personal injury resulting from an automobile accident, the plaintiff called a witness in rebuttal to impeach a certain portion of the testimony of the defendant driver of the automobile involved. The trial judge refused to permit the witness to refresh her recollection from a written report she had contemporaneously made of statements of the defendant concerning the happening of the accident. The jury returned a verdict for the defendant. On the plaintiff's motion, the court en banc awarded a new trial on the ground that the trial court had erred in respect of the above-mentioned ruling. The defendant appealed.
The appellant raises two questions, viz., (1) whether the witness who took the information from the defendant regarding the motor accident is competent to testify to such information for the purpose of contradicting the defendant at the trial of the action in trespass against him growing out of the accident and (2) whether the trial judge, in refusing the witness permission to use her written report of the indicated information
to refresh her recollection, committed such prejudicial error as to justify the granting of a new trial.
The injury in suit was inflicted when the plaintiff, a pedestrian, was struck by an automobile driven by the defendant near a street intersection in Allentown. Shortly after the occurrence, the defendant, in obedience to a local ordinance, went to police headquarters to report the happening of the accident. He there made certain statements as to how the accident had occurred which a clerk in the traffic office of the Police Department embodied in a typewritten report. A portion of the defendant's testimony at the trial, two years later, being thought inconsistent with the information he had given the clerk in the traffic office, the plaintiff called the clerk in rebuttal for the purpose of contradicting the defendant's testimony in cognate regard. The witness was unable to recollect the defendant's prior statements but testified that she could do so if permitted to refresh her memory from the report she had written at the time. It was in that situation that the court refused her the right so to do. The learned trial judge was of the opinion that the report was incompetent as evidence because of the privilege imposed by Sec. 1214 of The Vehicle Code of 1929 (the Act of May 1, 1929, P.L. 905, 75 PS § 761)*fn1 and that testimony, as to any "statement contained therein", by a witness who had refreshed her recollection from the report would be but a roundabout way of getting the report or a portion thereof in evidence contrary to the prohibition of the statute.
The error in the view so taken by the court at trial lay in the fact that the report ...