Appeal, No. 155, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 2877, in case of Joseph DeMarco v. Philip H. Rose. Judgment reversed.
Samuel Avins, for appellant.
J. Lawrence McBride, with him Dickie, McCamey, Chilcote & Robinson, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
It was nighttime and Joseph DeMarco, the plaintiff, was driving northwardly on Neville Street in Pittsburgh where it intersects with Bayard Street, which runs east and west. He stopped at the cross-walk and looked to right and left. No traffic was in sight and he moved forward cautiously at the rate of six miles per hour. When he got six feet into the intersection the lights of a car coming from the west 150 feet away flashed on and the car bore down on the intersection at some 60 miles per hour, striking the plaintiff's car broadside, demolishing it completely and inflicting serious injuries on the plaintiff. He recovered a verdict of $5500 at the ensuing trial.
The lower Court entered judgment n.o.v. on the basis that the plaintiff was guilty of contributory negligence. This appeal followed.
During the trial, the plaintiff was asked by defendant's counsel on cross-examination within what distance he could stop his car while travelling at the rate of 6 miles per hour. He replied: "I don't know. Just apply my brakes and would stop right there, but I mean to come out and say how many feet, I couldn't say that." This was undoubtedly an honest reply. He did not know how quickly he could stop under the circumstances and he so explained.
It is doubtful whether any average motorist could give a mathematically precise answer to the indicated question. However, the cross-examiner pursued his advantage, seeking now to have the plaintiff hazard an estimate of the stopping distance.The able Trial Judge warned the plaintiff that he did not need to answer the guess-searching interrogation. The plaintiff apparently ignored this advice and finally said that his "best estimate" was one foot. This became a foot in his mouth. After the jury returned a verdict in his favor, the Court en banc ruled that since he had said he could stop within a foot's distance and obviously he had not done so, he thus had convicted himself of contributory negligence with his own tongue.
While witnesses are to be held responsible for their replies, presumably given voluntarily and with full application of their significance, a sense of fairness requires an analysis of the setting within which a certain answer was made in order to determine with precision the real import of the response. What is obviously a sheer guess, a speculative reply or a psychologically coerced estimate cannot be ...