Appeal, No. 80, March T., 1958, from judgment of Court of Common Pleas of Beaver County, Sept. T., 1956, No. 84, in case of Warner Heacox v. Joseph F. Police. Judgment affirmed.
Louis C. Glasso, with him John Caputo, for appellant.
Charles M. Barrickman, with him Wallover & Barrickman, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
Judgment is affirmed on the opinion of Judge FRANK E. REED for the court below.
ING OPINION BY MR. JUSTICE MUSMANNO:
At about 11 o'clock on the night of October 13, 1955, Warner Heacox started across Route 88 in Conway, Beaver County, when he was struck by an automobile, travelling with such velocity that he was knocked into the air like a violently-hit tenpin. Describing the incident later, Haecox said: "Well, I went up in the air. I know I went in the air a considerable distance, it seemed to me because I turned a turtle." Allowing for a little exaggeration in the narrative it is still credible that the impact was far from the caress of a gentle breeze, because it is undisputed that when Heacox returned from his rapid flight, the femur bone of his left leg was projecting through the flesh.
He brought suit against the owner and operator of the car. The jury found in favor of the defendant and Heacox moved for a new trial on the asserted basis that the Trial Judge erred when he would not allow Heacox to testify to his estimate of the speed of the car which brought him to grief. In refusing the motion on this ground the Trial Judge said: "It thus appears from the plaintiff's testimony that from the time the defendant crossed from the westerly to the easterly lane of the southbound lanes at about Fourteenth Street until the time of the impact the plaintiff had not observed the speed of the defendant's automobile."*fn*
This is an assumption on the part of the Trial Judge that is not warranted by the record. The plaintiff testified that he first saw the headlights of the defendant's car when they were about 900 or 1000 feet away. He said that he kept looking at the car as he made the crossing, and that at one point the driver "seemed to accelerate the speed of the car." Thus, it was not necessary that the plaintiff's calculation of speed be limited to the stretch of road indicated by the Trial Judge.
The plaintiff was well qualified to estimate vehicular speed. In the first place he had been familiar with this particular crossing for period of eight years; in the second place he was a veteran automobilist, having driven for some 22 or 23 years; and in the third place he was a railroad conductor by occupation and had been a railroad worker for some 30 years, thus having developed a practised eye for distance and movement of cars.
When the plaintiff's attorney asked him: "Are you able to estimate the speed of which this car was traveling immediately before it struck you?" the defendant's lawyer objected: "If the Court please, in view of the testimony, that he says he just observed the headlights a minute before the impact, I don't believe he had it under observation long enough to give an opinion as to any speed. We object to it." In view of the fact that the defendant's attorney stated that the plaintiff had observed the headlights "a minute before the impact," it is difficult to understand what the Trial Judge meant when he said, in his opinion refusing a new trial, that "the plaintiff had not sufficient time to observe ...