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FINNERTY v. DARBY. (01/16/58)

January 16, 1958

FINNERTY, APPELLANT,
v.
DARBY.



Appeal, No. 246, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 3178, in case of James W. Finnerty v. Carmeletta V. Darby, in her individual capacity, doing business as Darby Transfer & Storage, et al. Judgment affirmed.

COUNSEL

John E. Evans, Jr., with him Martin Goodman and Evans, Ivory & Evans, for appellant.

Sanford M. Chilcote, with him David J. Armstrong and Dickie, McCamey, Chilcote & Robinson, for appellee.

Before Jones, C.j. Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Chidsey

[ 391 Pa. Page 302]

OPINION BY MR. JUSTICE CHIDSEY

As a result of a collision between an automobile owned and driven by the plaintiff James W. Finnerty and a truck owned by the defendant Carmeletta V. Darby, doing business as Darby Transfer and Storage, and driven by the latter's employe, Harry Lloyd Cooke, plaintiff brought this action in trespass to recover for personal injuries sustained and damage done to his car. The defendant filed a counterclaim for damage

[ 391 Pa. Page 303]

    done to the truck. At the end of a lengthy trial the jury tendered a verdict which read: "Both parties were guilty of contributory negligence". With the approval of the jury and acquiescence by counsel, the court molded the verdict so as to be reas and entered: "And now, to wit: January 24, 1957, we, the Jurors empaneled in the above entitled case, find Both parties were guilty of contributory negligence and find a verdict against the Plaintiff and in favor of the defendant and with respect to the counterclaim a verdict in favor of the Plaintiff and against the defendant." Plaintiff filed a motion for a new trial which, after argument before the court en banc, was refused and judgment duly entered on the verdict. This appeal by plaintiff followed. Defendant does not appeal.

Appellant contends here as in the court below that the trial judge erred in admitting the testimony of three witnesses as to the speed at which plaintiff was travelling and that the charge of the court was inadequate. A review of the testimony is desirable for a proper consideration of these contentions, none of which we find to be well founded. The accident happened on February 11, 1953 on Route 22 known as the William Penn Highway, in Indiana County, a few miles east of Armagh near the home of one Harry Rummel. Route 22 which runs east and west was at the time a two-lane blacktop highway, the paved portion being about 22 feet in width. The accident happened on a straight, almost level stretch of the highway about 2,000 feet long, referred to in the testimony as a plateau. According to the plaintiff, the accident happened about 6 P.M. Cooke, the defendant's driver, placed the time as 5:30 P.M. Throughout the afternoon and at the time of the accident there was a precipitation, variously described by the witnesses as rain, rain and snow, drizzle and sleet, accompanied by a high wind. As a

[ 391 Pa. Page 304]

    result the highway was wet and slippery. Harry Rummel who arrived at the scene of the accident very shortly thereafter, called by plaintiff as a witness, said: "The road was terribly slippery. You just couldn't stand up on it. ..." Albert M. Luther who operated the tow truck that removed the vehicles after the accident, called by plaintiff as a witness, said: "It was kind of raining sleet". "It was icy out where the wreck was ... awfully slippery". John V. Lyons, Jr., a witness called by the defense, who had been operating a car westwardly on the highway and had become involved in an accident at the same point very shortly after the collision between plaintiff's and defendant's vehicles, said: "... I had to stop about every mile to clean my windshield off of snow, sleet or whatever it was. It was freezing on my windshield.", that the road was "icy", the road conditions "were the worst I have ever driven in". Harold R. Kuczynski, a passenger in Lyons' car, said the rain was freezing on the road; "... it was icy in spots and probably very deceptive because the road was wet. You couldn't discern just where it was icy and where it was wet". Arthur Minarcin, a State Policeman who got word of the accident by radio and proceeded immediately to the scene, driving through Homer City to Armagh and thence about four miles eastwardly on Route 22 to the place where the accident happened, said that it was raining and when the rain hit the road it froze; that "The highway itself was a sheet of ice."

There were only three eye witnesses to the accident - Cooke, the driver of the defendant's truck, the plaintiff and Harold S. Lang, a passenger in the plaintiff's car. The latter was a Government expediter and inspector and had been associated with the plaintiff from two to four months in connection with a Government contract in which the plaintiff was interested.

[ 391 Pa. Page 305]

Earlier in the day the two of them went from Altoona to Wilkinsburg in connection with work being done on this Government contract by a sub-contractor. They left Wilkinsburg at about 4:15 P.M. on the afternoon of February 11, 1953 on their way back to Altoona.

Plaintiff testified that it was raining and snowing during the trip back and most of the time he had his windshield wipers working. When asked by his attorney as to the general condition of the highway as he drove eastwardly on Route 22 from Wilkinsburg, he testified: "The road was wet. It wasn't icy. Some place along through there, well, not icy, it was like scum like you get on to grease, just enough to give you a movement of your automobile other than normal, other than the normal rolling or forward - it wasn't icy."; that before reaching the 2,000 foot straightaway or plateau above mentioned there was a dip, then a rise in the road and when he got to the top of the rise and was entering on the plateau he saw the lights of an approaching car in the distance; that he was then about 300 or 400 feet from the Rummel house, travelling in the eastbound lane; that he was in high gear but his speed was not greater than 25 miles an hour; that when he reached the Rummel house his car went into a spin counterclockwise, the rear swinging around so that after proceeding two or three car lengths the car crossed the westbound lane and continued on to the berm on the north side of the road and was facing west, the direction from which he had come. He claimed that his engine had gone dead during the spin, that his car came to a stop and that he was attempting to start it; that he pushed the starter button located on the dash and disengaged the clutch (which he said took him 15 seconds to accomplish) when there was a "terrific impact or whack to the car". From his testimony his car at the time of impact was from 150 to

[ 391 Pa. Page 306200]

feet beyond (east of) the Rummel house, in front of which he had started to skid.

Cooke, the driver of the defendant's truck who had made a delivery at Altoona, left there about 3 P.M., and was returning to Pittsburgh, driving westward on the westbound lane of Route 22. He was familiar with the road and had driven trucks over it for the same employer for 19 years. He testified that it was drizzling and turning to ice and the road was "all icy"; that after he came up a slight rise in the road and was travelling across the plateau or level stretch above referred to, he saw the plaintiff's car about a half mile away; that it dipped out of his view and then he saw it again when it came up the rise onto the west end of the level straightaway; that when plaintiff's car was some 20 to 25 yards away it swung crosswise on the road in a counterclockwise direction directly in the path of the truck; that he, Cooke, to avoid the plaintiff's car, immediately drove his truck onto the right or north berm which was about 10 feet wide at that point; that plaintiff's car continued to swing around, went out onto the north berm and while travelling backwards, collided into the front of the truck with its rear end; that when plaintiff's car was leaving the icy road and coming onto the berm, Cooke applied his brakes and slid half a truck length (the truck was from 20 to 25 feet in length) to the point of impact. Before plaintiff's car began to skid Cooke had his truck in the next lower gear to high and was travelling at 20 miles per hour while plaintiff's car was going 50 to 60 miles per hour; that when the two vehicles collided plaintiff's car was moving backward toward his truck. Plaintiff's counsel made no objection to Cooke's testimony regarding the speed of plaintiff's car and, as said by the court below, "There could hardly have been one made since the witness was an experienced

[ 391 Pa. Page 307]

    driver and apparently had ample opportunity to observe the plaintiff's car before it began to skid."

It was undisputed that after the collision both vehicles were completely on the north berm, facing west, the plaintiff's car being embedded in and under the front of the truck, the front bumper of which rested against the front seat of the plaintiff's four-door sedan. The testimony was conflicting as to whether the accident occurred while it was still daylight or dark. The plaintiff testified that he had to turn his headlights on when he left a gas station where he had his gas tank filled just west of Armagh and that it was no longer daylight when he got to Armagh, four miles west of the scene of the accident. Plaintiff's passenger Lang in his deposition hereinafter more fully referred to, said that when the accident happened "... it was about dusk", and he did not know whether plaintiff had his headlights on. Cooke testified that it was still daylight, that he did not have his lights on nor did the plaintiff. Mervin Ling, one of a State Highway crew which subsequently engaged in ashing the highway, testified that he saw a car which the jury was justified in finding to be plaintiff's proceeding eastwardly at a speed of 50 miles an hour at a point about a quarter or half mile west of the point of accident; that he walked to his home about an eighth of a mile north of the highway where he was picked up by the driver of the ashing truck and driven back to the highway; and that it was his belief that it was then "just getting dark". Plaintiff testified that the distance from Wilkinsburg to Altoona was 90 miles and that from Wilkinsburg to the scene of the accident "not over 60 miles". He said the stop at the gas station for gasoline took 5 minutes. Since the jury could find that the accident occurred at 5:30 P.M. as Cooke testified,

[ 391 Pa. Page 308]

    it appears that it took Cooke, who left Altoona at 3 P.M., two and one-half hours to travel 30 miles, while plaintiff, who left Wilkinsburg at 4:15 P.M., covered the 60 miles to the scene of the accident in an hour and 10 minutes (deducting 5 minutes for the stop at the gas station). Route 22 was not a turnpike or limited-access highway.

The testimony of plaintiff's passenger Lang contradicted the plaintiff's statement that his car came to a stop before the collision. Both men were knocked unconscious by the impact. Lang testified that "When I lost consciousness the [plaintiff's] car was still moving." This was in accord with Cooke's account of the collision. Lang's testimony also established that plaintiff was driving substantially in excess of 25 miles per hour. On the morning following the accident plaintiff informed Minarcin, the State Policeman who investigated the matter, that he was travelling 40 miles per hour when his car began skidding.

The court carefully and properly instructed the jury that skidding of itself did not establish negligence but that negligence could cause skidding and the resulting consequences; that the question for the jury to determine was whether the plaintiff was travelling at a reasonable or an excessive rate of speed under the weather and road conditions prevailing. Plaintiff's counsel makes no complaint of the charge in this regard. Although one of the reasons assigned in plaintiff's motion for a new trial was that the verdict of the jury as it affected the plaintiff was against the weight of the evidence, such reason is not pressed. And advisedly so, for the evidence fully justified a finding by the jury that under the extremely slippery condition of the highway plaintiff was driving at an excessive, if not indeed a reckless rate of speed. Plaintiff's contention is that the court erred in admitting the testimony

[ 391 Pa. Page 309]

    of the witnesses Lang, Ling and Minarcin as to plaintiff's speed.

Before discussing the testimony of these three witnesses, we note that the statement in appellant's brief that the jury must have relied upon the testimony of one or more of these three witnesses as to the speed at which plaintiff was travelling, is not well founded. The assertion is premised upon the fact that the jury found the defendant negligent and therefore rejected Cooke's version of the accident that placed the plaintiff's speed from 50 to 60 miles per hour. The jury did not have to accept the defendant's version of the accident in its entirety. "It is perfectly reasonable for the jury to believe so much of the testimony offered by a litigant as pertains to what the opposing party did, and disbelieve that part of the testimony as tends to absolve the litigant of liability.": Antonelli v. Tumolo, 390 Pa. 68, 73, 132 A.2d 285. Moreover, under the weather and road conditions prevailing, the jury could have found that even driving at 20 miles per hour, the speed at which Cooke testified he was travelling, was negligent. Indeed they could have found that continuing to drive on the treacherous and highly dangerous road surface that existed until it was ashed or conditions bettered, was foolhardy. Neither vehicle had chains on its wheels. Both plaintiff and the defendant's driver had accomplished their missions and there was no compelling reason for haste on their return journeys.

We turn to the testimony of Lang, plaintiff's companion who sat in the front seat of the car, as to the speed at which they were travelling. Lang's testimony consisted of excerpts from his deposition*fn* taken in Washington, D.C. at the instance of and offered in evidence by the defendant. A reading of Lang's entire

[ 391 Pa. Page 310]

    testimony shows as the court below stated that he was a reluctant, if not a hostile witness. Appellant in his brief quotes portions of his testimony where, questioned as to the speed at which plaintiff's car was travelling, he answered, "I don't know". His entire testimony makes plainly apparent that he either did not want to testify to a rate of speed that would adversely affect the plaintiff or that he was under the misconception that he must be able to testify positively to the exact speed of the car, that is, the exact number of miles per hour. Appellant also quotes the following from Lang's testimony: "Q. What is your best estimate then, sir, of the speed of this car for a mile or so prior to the accident? A. (Pause.) Strictly as a guess I would say between 40 and 50 miles an hour." From this appellant argues that the witness' entire testimony was nothing but guesswork or mere conjecture. In the first place, the word "guess" does not necessarily mean mere conjecture, but may connote judgment. If a person is asked to estimate the number of people in a crowd, he may say "I guess" a certain number, or he may say "I judge" a certain number. By either term he is expressing an opinion based on observation. In the instant case the witness repeatedly made clear that he could not give the exact speed of the car, and was giving his best opinion of its approximate speed. We quote from the opinion of the court in Commonwealth v. Forrey, 172 Pa. Superior Ct. 65, at p. 70, 92 A.2d 233:

"A witness for the Commonwealth in answer to eh question: 'Do you have an opinion on the speed of the [defendant's] truck?' stated: 'I would say twenty-five to thirty at a guess, but due to the size of the truck it is pretty hard to arrive at that'. The court over objection allowed the answer to stand. There was no error in the ruling. A non-expert witness is competent to express

[ 391 Pa. Page 311]

    an opinion as to the rate of speed of an automobile. Commonwealth v. Godshalk, 76 Pa. Superior Ct. 500. Regardless of the choice of words it is clear that the witness intended to express his opinion as to speed as best he could. ..." (Emphasis supplied). And see Commonwealth v. Aurick, 138 Pa. Superior Ct. 180, 10 A.2d 22.

Secondly, and more important after the witness unfortunately used the word "guess", he again and again, albeit reluctantly, expressed his judgment as to the plaintiff's approximate speed, especially after he was advised that he need not give the exact speed but could testify to a range within which the car was travelling. The witness testified positively that "We were going more than 25 miles an hour", which was the speed plaintiff said he was travelling. Thereafter there was testimony by the witness as follows:

"... Were you going 35 miles an hour? The Witness: Well now, we are getting up in the area where I don't know. Those very slow speeds I mean I am pretty sure of that, you know, because that is just creeping along but I mean I don't know up around those speeds. We were probably going 35 miles an hour. Q. Your best estimate of the speed of Mr. Finnerty's vehicle, for one or two miles prior to this collision is 35 miles an hour? The Witness: (Pause) Well, that nails me down to the specific speed, I don't know. ...

"The Witness: I would like to make a statement as to the speed and make it for the record if you want to. There are certain limits that I know that we were perhaps going within. But I mean now these very slow speeds like ten or fifteen miles an hour I know we were not going that and I know that at the time of the accident we were not going at an exceedingly high speed but there is a range in there that my memory tells me perhaps it might be in there. What I mean, I can't

[ 391 Pa. Page 312]

    pinpoint that. I mean it is going on two years now. Q. What is that range, sir? A. Well, I don't know, maybe 35 to 55, something in that order. ...

"Well, I said maybe, that means to the best of my recollection. ...

"By Mr. Martell [defendant's counsel]: If you don't know the exact speed in miles per hour give us a range in which the car was travelling. Now I thought you had indicated at one time that to the best of your recollection his car immediately prior to the accident was going from 35 to 55 miles an hour, am I correct? A. Yes, I indicated that on the basis that his car was neither going very slow nor very fast, in other words, I don't think he was going higher than 55, no."

The last question and answer were as follows: "... What is your best approximation of his speed immediately prior to the collision? A. (Pause) I give the figures 35 to 55 miles an hour as the best approximation of his speed on the basis that he was neither going very slow nor very fast at the time we started to skid." Under the deposition the jury certainly could have found that plaintiff was driving not over 55 miles per hour, but more than 35 miles per hour. In any event the testimony was admissible and its weight a matter for the jury. Absolute accuracy is not required to make a witness competent to testify to the speed of an automobile: See Dugan v. Arthurs, 230 Pa. 299, 303, 79 A. 626.

Appellant additionally contends that all of Lang's testimony as to speed was inadmissible because he was not qualified generally to express an opinion on the speed of an automobile, and not shown to have made any observation which would have enabled him to form an opinion as to the speed at which plaintiff's car was traveling. It is sufficient answer to this contention

[ 391 Pa. Page 313]

    that it is made for the first time in this Court. Appellant made no objection when Lang's deposition was offered in evidence, and appellant does not challenge appellee's statement that no such objection or contention was raised or argued before the lower court on plaintiff's motion for new trial. Under these circumstances the contention cannot be considered. A reason for granting a new trial which was not assigned in the court below cannot be considered for the first time on appeal: Risbon v. Cottom, 387 Pa. 155, 127 A.2d 101, and cases cited therein. Moreover, by not objecting to the introduction of Lang's testimony when it was offered, plaintiff's counsel deprived counsel for defendant of the opportunity to qualify Lang by introducing those portions of the deposition which related to the witness's qualifications.

Lang's entire deposition was 65 typewritten pages in length. At first plaintiff proposed to offer a portion thereof in evidence. This offer was withdrawn when the court ruled that the defendant could also introduce other portions which the court held to be relevant. The defendant then proposed to introduce a portion of the deposition in defendant's case together with the portion desired by the plaintiff. At conference with the judge in chambers the court ruled on specific objections by plaintiff's counsel to the inclusion or exclusion of certain testimony contained in the portions of the deposition which counsel agreed should be introduced into evidence in accordance with such rulings, and the same were then read to the jury. At no time did plaintiff object to any part of the deposition on the ground that Lang was not qualified to express an opinion on the speed of an automobile. Indeed he was not in a position to do so because when the deposition was taken, defendant's counsel at the outset qualified the deponent as follows: "Q. Let me

[ 391 Pa. Page 314]

    withdraw that question and ask you this, sir. Do you drive a car yourself? A. Yes, sir. Q. For how long have you driven a car? A. Oh, my goodness. 24 years. Q. During those 24 years, sir, have you had an opportunity to estimate the speed of a car? A. Oh, sure. Q. Either the one you are traveling in or one that you see along the street? A. Sure." Under the circumstances it is anything but commendable for appellant's counsel to advance this contention in our Court.

The witness Mervin Ling testified that shortly before the accident occurred he was crossing the William Penn Highway on his way to his home which, as above stated, was about an eighth of a mile north of the highway and when he was "right along the road" he observed a blue Mercury automobile proceeding eastwardly on the highway at a point one-quarter or one-half of a mile west of the scene of the collision. He said the automobile was either a 1950 or 1951 model, that there were two men in it and it was travelling not less than 50 miles per hour. It was not disputed that plaintiff owned and was driving a blue 1951 Mercury car when the collision occurred. Ling had driven a car from 20 to 25 years and had an opportunity to watch the car drive by and judge its speed as he stood along the side of the road. As above related, he continued to his home where he was picked up by the cinder or ash truck which returned to the highway and proceeded eastwardly, ashing the road to a point some distance beyond the scene of the accident; that when the truck passed the scene of the accident he saw the vehicles that had collided, standing off he road on the north berm, the truck at the rear of the car and both facing west. Apparently because he did not actually see the collision he would not say that the car was the same one that had earlier passed him, but said it looked to him like a blue Mercury. On

[ 391 Pa. Page 315]

    cross-examination counsel for the plaintiff asked him: "Did I understand you to say you thought there was a blue Mercury there but you weren't sure?", and he answered: "No, it looked to me like a blue Mercury." Appellant suggests that a blue Mercury car is a common type of car and that the car which the witness saw passing him was not sufficiently proven to be plaintiff's car. There was no evidence of any car other than the plaintiff's proceeding eastwardly or westwardly in the vicinity prior to the approach of the car of the witness Lyons from the east, which was involved in an accident at the same point after the collision between the plaintiff's and the defendant's vehicles. Cooke saw only the plaintiff's car approaching from the west. The plaintiff testified to no other vehicles passing him in either direction and Lang testified that he saw no cars ahead or in back of the plaintiff's car.

However, plaintiff contends that assuming that it was plaintiff's car which the witness Ling observed going by, his observation as to its speed was too remote from the scene of the collision to be relevant. This Court has frequently ruled that testimony as to the speed or operation of an automobile at a point near and a short time before the collision is admissible and relevant to the issue of the speed of the vehicle at the time of the accident. Such evidence is admissible, its weight and credibility being for the jury: Shellenberger et al. v. Reading Transportation Co., 303 Pa. 122, 154 A. 297; Gerhart v. East Coast Coach Co., 310 Pa. 535, 166 A. 564; Rooney v. Maczko, 315 Pa. 113, 172 A. 151; Commonwealth v. Pennzoil Company, 358 Pa. 221, 56 A.2d ...


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