Appeals, Nos. 108 and 109, March T., 1956, from judgment of Court of Common Pleas of Westmoreland County, May T., 1954, No. 13, in cases of Bernard L. Risbon v. Lewis Cottom and Lewis Cottom v. Bernard Risbon. Judgment affirmed.
Robert W. Smith, Jr., with him William H. Kahanowitz and Smith, Best & Horn, for appellant.
Myron W. Lamproplos, with him George W. Lamproplos, Joseph P. Latella, and Cassidy & Lamproplos, for appellee.
Before Stern C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
There appeals are from judgments entered in two separate trespass actions for damages for personal injuries said to have been negligently inflicted. The injuries in suit resulted from a head-on collision between two passenger automobiles traversing a State highway. One of the automobiles was driven by Lewis Cottom,
and the other by Bernard Risbon. Each of the drivers was the sole occupant of his automobile at the time of the accident, and each sued the other for damages. The cases were tried together. The jury returned a verdict in favor of Cottom for $8,500 in the case in which he was plaintiff and also a verdict for him as the defendant in the action wherein Risbon was plaintiff. Risbon's motions for new trial were denied and, from the judgments entered on the verdicts, he took these several appeals.
The appellant contends that the court below erred for any one of the following reasons in not granting his new trial motions; (1) in refusing to withdraw a juror, on Risbon's motion, because a medical witness for plaintiff Cottom testified, in direct examination in chief, that, when he examined Risbon shortly after the accident, he thought he had been drinking; (2) in permitting a witness for Cottom to testify in rebuttal, over Risbon's objection, that a week after the accident Cottom had stated to him the circumstances attending the accident-- this for the purpose of restoring Cottom's credibility as a witness at the trial, Risbon having testified in his case that, two weeks after the accident, Cottom had told him he had no recollection as to how the accident had happened; and (3) that the verdict is excessive.
Cottom's medical witness, while testifying in direct examination concerning Risbon's condition in the hospital emergency room the evening of the accident, stated that he "thought at the time he [Risbon] had been drinking." Risbon's counsel forthwith moved for the withdrawal of a juror and a continuance of the case on the sole ground that "There is no allegation whatever in this complaint on any such matter." The learned trial judge refused the motion. In Critzer v.
that "there [was] no allegation in the plaintiff's complaint that the defendant was operating his vehicle while under the influence of intoxicating liquor."
Despite the well-settled principle that a reason for granting a new trial which was not assigned in the court below cannot be considered for the first time on appeal (McCann v. Hedin, 377 Pa. 508, 510, 105 A.2d 594; Keane v. Philadelphia, 360 Pa. 384, 386, 61 A.2d 834; Dugan v. McGara's, Inc., 344 Pa. 460, 465, 25 A.2d 718; Gasperoni v. Datt, 341 Pa. 448, 451, 19 A.2d 376), the appellant now urges upon us that the doctor's opining that Risbon had been drinking should have been excluded as insufficient to prove that he was under the influence of liquor at the time of the collision.
The question which the appellant thus seeks to raise is not properly before us. However, we may note in passing that, while the doctor's opinion that Risbon had been drinking, standing by itself, was not sufficient to prove intoxication (see Critzer v. Donovan, supra), it became de minimis and, consequently, harmless. The State police officer, who saw Risbon at the hospital an hour after the accident, testified that he was boisterous, had the smell of alcohol on his breath and admitted recent drinking at Brownsville and again en route at a place just two miles from the scene of the accident. Risbon also admitted at trial that, just prior to the accident, he had travelled several miles out of his way on the wrong road in country with which he was thoroughly familiar; and he failed to account for the extra hour of elapsed time between his ...