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January 10, 1957

Susan DE VITA, Administratrix of the Estate of Nicholas Mellon, Deceased,
Glenn LONG

The opinion of the court was delivered by: DUSEN

This case comes before the court on plaintiff's motion for a new trial filed after the jury found a verdict for the defendant on his counterclaim. Defendant and plaintiff's decedent were the drivers of two cars which collided near the left front of each car at the eastern end of a curve on the Frackville-Morea road (Schuylkill County, Pa.) in the early morning darkness on June 30, 1951. Plaintiff's decedent died within a week of the accident. In considering this motion, the evidence must be considered in the light most favorable to the defendant. *fn1"

Plaintiff complains of the admission into evidence, over her objection, of the opinion of a state police officer, who arrived on the scene about 40 minutes after the 5 A.M. accident, as to the place of the collision. *fn2" The police officer *fn3" testified that the point of impact was on defendant's side of the road. In the charge, the trial judge instructed the jury that they were entitled to take this opinion into consideration, giving it such weight as the jury believed it deserved and drawing their own conclusion from the testimony. *fn4"

 The rule of exclusion of opinion evidence applies in cases where the jury has the same information as the witness and the witness has no superior qualifications based on experience or otherwise. It is based on the policy of excluding superfluous and possibly confusing testimony. Wigmore, 1918 (3rd Ed.). The true criterion of admissibility has been stated by Wigmore as follows ( ยง 1923, p. 21, Vol. VII, 3rd Ed.):

 'On this subject can a jury from this person receive appreciable help? In other words, the test is relative one, depending on the particular subject and the particular witness with reference to that subject, and is not fixed or limited to any class of persons acting professionally * * *.'

 Following these principles, the courts have, in recent years, frequently admitted into evidence the opinion of highway police officers as to the point of impact in auto accident cases where the trial judge felt such testimony would be of appreciable help to the fact-finders. Een v. Consolidated Freightways, D.C.D.N.D.1954, 120 F.Supp. 289, affirmed 8 Cir., 1955, 220 F.2d 82; National Alfalfa Dehydrating & Mill Co. v. Sorensen, 8 Cir., 1955, 220 F.2d 858; Wells Truckways Ltd. v. Cebrian, 1954, 122 Cal.App.2d 666, 265 P.2d 557; Long v. State, Okl.Cr.1954, 274 P.2d 553; and cases cited in those cases. See also, 23 A.L.R.2d 112, 135. It would not be helpful to lengthen this opinion with a repetition of the thorough and able discussion of the matter in 120 F.Supp. at pages 291-295 and in 265 P.2d at pages 562, 563-564. *fn5"

 Although no Pennsylvania appellate court decision considering the opinion of a police officer as to the point of impact has been cited by either counsel, the Pennsylvania appellate courts have approved the admissibility of opinion evidence by witnesses without scientific training, but with experience in the matter, in a variety of situations. See Nicholson v. Feagley, 1940, 339 Pa. 313, 316-317, 14 A.2d 122 -- opinion that cars had not moved since they came to rest after accident; Shaffer v. Torrens, 1948, 359 Pa. 187, 192-193, 58 A.2d 439 -- opinion as to speed of vehicle; *fn6" Commonwealth v. Townsend, 1942, 149 Pa.Super. 337, 340-341, 27 A.2d 462 -- opinion as to to modus operandi of a type of larceny by trick; Churbuck v. Union Railroad Co., 1955, 380 Pa. 181, 186-187, 110 A.2d 210 -- opinion as to proper use of pick under the circumstances; Pierontoni v. Barber, 1956, 384 Pa. 56, 60-61, 119 A.2d 503 -- opinion as to speed of vehicle; and cases cited in the foregoing cases.

 After careful consideration, the trial judge does not believe the opinion in Giffin v. Ensign, 3 Cir., 1956, 234 F.2d 307, 314, requires or justifies the grant of a new trial in this case. *fn7" Under the facts of that case, *fn8" the court held it was not reversible error to exclude testimony of a police officer as to the point of collision. *fn9" However, the Court of Appeals for the Third Circuit has indicated that the admission or exclusion of opinion evidence lies in the discretion of the trial judge on the facts of the particular case. See Conry v. Baltimore & O.R. Co., 3 Cir., 1953, 209 F.2d 422, 425; Gindville v. American-Hawaiian S.S. Co., 3 Cir., 1955, 224 F.2d 746, 748. *fn10" Also, in view of the instructions given to the jury on this subject (see footnote 4 above), the restrictive language adopted by the Pennsylvania Supreme Court which was read in the presence of the jury, *fn11" and the existence of other evidence confirming the opinion of the police officer, *fn12" any error in the admission of this evidence does not seem to make refusal of a new trial 'inconsistent with substantial justice.' See F.R.Civ.P. 61. *fn13"


 And now, January 10, 1957, it is ordered that plaintiff's motion for a new trial is denied.

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