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OKOTKEWICZ v. PITTSBURGH RAILWAYS COMPANY (11/09/59)

November 9, 1959

OKOTKEWICZ
v.
PITTSBURGH RAILWAYS COMPANY, APPELLANT.



Appeal, No. 158, March T., 1959, from order of Court of Common Pleas of Allegheny County, July T., 1955, No. 526, in case of Frances Okotkewicz v. Pittsburgh Railways Company. Order affirmed. Trespass for personal injuries. Before MARSHALL, J. Verdict entered for defendant; plaintiff's motion for new trial granted and order entered. Defendant appealed.

COUNSEL

Leo Daniels, with him Prichard, Lawler & Geltz, for appellant.

Joseph I. Lewis, for appellee.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Mcbride, JJ.

Author: Jones

[ 397 Pa. Page 304]

OPINION BY MR. CHIEF JUSTICE JONES

In this trespass action for damages for personal injuries, the jury returned a verdict for the defendant. The court awarded the plaintiff a new trial on the ground that the trial judge had committed harmful error in allowing the defendant, over plaintiff's objection, to cross-examine a witness for the plaintiff excessively and in admitting (also over plaintiff's objection) rebuttal testimony for the purpose of contradicting the witness in respect of his testimony improperly elicited in cross-examination. At the defendant's instance, the trial court certified that the order granting a new trial was founded entirely, to the exclusion of any other reason, on the trial judge's allowance of the assailed cross-examination and rebuttal testimony. The record does not show that the certificate was obtained with prior notice to the plaintiff. If not, it should have been. The defendant has appealed the new trial order, contending that it should be reversed and that judgment should be entered on the jury's verdict for the defendant.

The plaintiff received the injuries, for which he brought suit, in a collision between his automobile, which he was driving, and a streetcar of the defendant company, operated by its employee, in the Borough of Castle Shannon, Allegheny County.

At trial, the plaintiff called as a witness the Chief of Police of the Borough, Andrew Orr, who, in the course of his investigation of the accident, had interviewed the motorman of the streetcar (two other persons being present during the interview). In direct examination, plaintiff's counsel questioned Orr and the latter answered, as follows: "Q. Did you interrogate the operator of the street car later? A. Yes, I did, sir. Q. What was his name? A. Charles Walter Schmidt.

[ 397 Pa. Page 305]

Q. Did you ask him what speed he was making through the intersection there? A. Yes, sir. Q. What answer did he give you? A. Fifteen miles per hour." That was the extent of the plaintiff's direct examination of the witness Orr with respect to his conversation with motorman Schmidt subsequent to the accident.

On cross-examination, defendant's counsel asked Orr nothing concerning the speed of the streetcar at the time of the accident, as related by Schmidt at his interview by Orr, but was permitted, over plaintiff's objection, to interrogate Orr relative to statements supposedly made by him, during his interview of Schmidt, concerning admissions of causative fault on his part allegedly made by the plaintiff to Orr when the latter interviewed the plaintiff at a hospital following the accident. The culmination of defendant's cross-examination of Orr in this connection reads as follows: "Q. Do you remember relaying to them [i.e., Schmidt and the two other persons present] what Mr. Okotkewicz told you as to how it [the accident] happened? A. No. Q. You didn't? A. No. Q. Now, you didn't tell them that Lefty [the plaintiff] told you that he couldn't see the car because he came from behind an opposite bound car? A. No." The impropriety of this non-germane and otherwise objectionable cross-examination was further aggravated by testimony offered by the defendant in rebuttal.

The defendant called as a witness, Andrew B. Adamson, a general police agent of the defendant company, who was one of the persons present at the conversation between Chief Orr and motorman Schmidt. Adamson was permitted to testify, over the plaintiff's objection, for the ostensible purpose of impeaching Orr's answers during cross-examination by the defendant concerning his ...


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