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WENTWORTH v. DOLINER (05/04/60)

May 4, 1960

WENTWORTH
v.
DOLINER, APPELLANT.



Appeals, Nos. 24 and 25, March T., 1960, from orders of Court of Common Pleas of Crawford County, Feb. T., 1957, No. 201, and Nov. T., 1956, No. 70, in cases of Homer Harvey v. Frank Doliner; and William E. Wentworth et al. v. Frank Doliner et al. Orders affirmed.

COUNSEL

Stuart A. Culbertson, with him Paul E. Allen, for appellants.

Kenneth W. Rice, with him Eckles, Stegner & Blystone, for appellees.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 399 Pa. Page 357]

OPINION BY MR. JUSTICE MUSMANNO.

Two cases, consolidated for trial, are involved in this appeal, but since the questions on appeal are identical in both instances, the cases will be treated as one. The plaintiffs sustained injuries as the result of an automobile accident which occurred in Crawford County. At the ensuing trial, the jury returned verdicts for the defendant and the trial court ordered a new trial on the basis that the verdicts were against the weight

[ 399 Pa. Page 358]

    of the evidence. A review of the record supports the lower court's order and we see no necessity for discussing the evidence which justified the action of the court below.

However, it should be said, so that on the retrial a similar error will not recur, that had the court not reversed for the reason given, a new trial would have been imperative because of the frequent references made during the trial to "drinking" concerning the plaintiff, William E. Wentworth.

William E. Wentworth was the driver of a Dodge automobile which he was operating on Route 322 in an eastwardly direction on September 4, 1955, at about 3 o'clock in the morning. The owner of the car, Homer Harvey, and a Judy Costello occupied the front seat with him. Other passengers, with whom we are not concerned in this appeal, sat in the rear seat of the car. When the Dodge car arrived at the intersection of Route 322 and Route 98, a Mercury automobile, being driven by the defendant Frank Doliner, on Route 98, ignored the Stop sign at this point and collided with the Dodge car.

In the cross-examination of Wentworth, it developed that, prior to the time of the collision, he and his friends had visited Conneaut Lake Park and a dancing-restaurant place called the Cow Shed. Defendant's counsel asked Wentworth: "You had something to drink at Conneaut Lake Park, hadn't you?" Wentworth replied: "I had nothing to drink that night." Counsel then asked: "You didn't?" And Wentworth replied: "Not a drop."

Later, defendant's counsel asked and Wentworth replied as follows: "Q. How long did you stay at the Cow Shed? A. Well, we got there around midnight and left there when they closed. Q. What time? A. Oh, ...


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