Appeal, No. 236, Oct. T., 1955, from judgment of Municipal Court of Philadelphia County, March T., 1953, No. 629, in case of Elizabeth Winterer Stewart v. Supplee-Wills-Jones Milk Company. Judgment affirmed.
Gordon W. Gerber, with him Owen B. Rhoads, and Barnes, Dechert, Price, Myers & Rhoads, for appellant.
Thomas R. White, Jr., for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 585]
This is an action in trespass for damages to plaintiff's automobile arising from an intersection collision with defendant's truck. Trial was held before a judge sitting without a jury and a verdict was rendered in favor of the plaintiff. Defendant moved for judgment n.o.v. which was denied by the court below and defendant has appealed.
Plaintiff's driver testified that he was operating plaintiff's automobile in a westerly direction on Hazel Avenue in Philadelphia; that he came to a stop at the intersection of Hazel and 61st Street, where there are no traffic controls; that he then proceeded slowly into the intersection, his view to the left being blocked by a truck parked close to the corner; that suddenly the defendant's truck appeared in front of him, approaching from his left, and he was unable to avoid striking it.
Defendant's driver was called as on cross-examination by plaintiff and, after objection was overruled, testified as follows: that he was driving north on 61st Street; that as he approached the intersection of Hazel Avenue he was unable to see to his right because of the parked truck which had also blocked the view of the plaintiff's driver; that he therefore entered the intersection slowly and was able to see plaintiff's car approaching only when he was about ten feet into the intersection; that he did not stop because if he had done so plaintiff's car would have struck him in the cab instead of the rear of his truck, assuming plaintiff's car did not come to a halt; that he therefore proceeded and was struck in the rear of his truck.
It is conceded that plaintiff's driver was a bailee and that therefore any contributory negligence of which he may have been guilty is not imputable to
[ 180 Pa. Super. Page 586]
plaintiff. However, plaintiff's driver was not joined as an additional defendant.
Defendant contends that the testimony was insufficient to make out a prima facie case of negligence. It is further contended that the testimony of defendant's driver should not have been considered because the court below erroneously allowed him to testify for plaintiff as on cross-examination. It is true that the court below should have sustained defendant's objection to his driver's testimony as on cross-examination, since the Act of May 23, 1887, P.L. 158, Section 7, as amended, 28 PS 381, which permits cross-examination of certain parties, clearly does not include this driver within its scope. However, the driver was thereafter called as a witness for defendant. While acting as such witness he was examined by the trial judge concerning the facts of the collision and substantially reiterated his testimony given as on cross-examination. Before doing so the trial judge asked if there ...