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PARENTE v. DICKINSON. (01/16/58)

January 16, 1958

PARENTE, APPELLANT,
v.
DICKINSON.



Appeal, No. 384, Jan. T., 1957, from judgment of Court of Common Pleas of Luzerne County, May, T., 1955, No. 807, in case of Charles Parente v. John Dickinson et al. Judgment affirmed.

COUNSEL

Herman B. Shepard, with him Jerome M. Libenson, for appellant.

Robert L. Fleming, for appellees.

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

Author: Bell

[ 391 Pa. Page 163]

OPINION BY MR. JUSTICE BELL

This is an appeal from a judgment entered on a verdict in favor of defendant. Plaintiff brought an action in trespass for injuries sustained by him resulting from a collision with defendant's automobile. Plaintiff's testimony as to how the accident happened was both confusing and contradictory. He first testified that he was struck while on the corner by the curbstone. He testified that he first saw the car when it was pretty close, about three feet away, and that he had taken two or three paces from the curbstone onto

[ 391 Pa. Page 164]

    the street when the car hit him. Several times in answer to leading pertinent questions as to how the accident happened he said he did not know, he did not remember. The defendant and his eye witness testified that the front of the car was just about in front of the plaintiff when he stepped out onto the street and walked into the front fender of the car. Defendant's testimony was corroborated by a police officer who testified that he made an examination less than an hour after the accident, and failed to find any evidence of tire tracks in the dirt path adjoining the highway beyond the curb where plaintiff said he was standing, or any evidence that defendant's car had gone over the curb.

Plaintiff on cross-examination was asked the question "Did you step off the curb before you were hit, and if so, how many steps had you taken?" To which plaintiff answered "Two or three feet and it grabbed me by the coat and it drug me." The jury returned a verdict in favor of the defendant; we believe it was the only just verdict that could have been rendered under the evidence in this case.

Judge LEWIS, the trial Judge in this case, deserves credit for leaning over backward to protect plaintiff, because of his age and his difficulty in speaking English. The only reason containing any substance which plaintiff alleges for a new trial is that counsel for defendant asked an unfair misleading question on cross-examination: "How far away from you was the car when you stepped out in the street?" The trial Judge in his opinion dismissing the motion for a new trial said, inter alia: "After a careful and complete examination of the entire record, we feel that, under all of the circumstances hereinbefore referred to, the question put to the plaintiff, an interested party, was not improper. Such a witness is always subject to questions

[ 391 Pa. Page 165]

    testing his memory or credibility. When the question was asked of him on cross-examination, he had already beclouded*fn* the issue by two versions as to where he was when struck. He had said he was 'on the corner by the curb stone' and also 'on the curb stone.' He had also said he was struck on the right side, testimony virtually irreconcilable with the rest of his story.

"It is therefore apparent that plaintiff's own responses on direct examination raised inferences inconsistent not only with the allegations of his complaint, but possibly inconsistent also with his right to recover. 'Cross-examination is not confined to the precise facts elicited upon direct examination, but may be extended to all inferences, deductions and conclusions which may be drawn therefrom. The scope of cross-examination rests within the trial court's sound discretionary power.' ... Lester v. Century Indemnity Co., Aplnt., 356 Pa. 15, 18.*fn**

We believe under the evidence in this case the question asked on cross-examination was perfectly proper and its allowance was undoubtedly within the sound discretionary power of the trial Judge. It is clear that the plaintiff had a fair trial and that there was no basic or fundamental error therein.

Mr. Justice COHEN dissents.

Disposition

Judgment ...


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