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MAIER v. PITTSBURGH RAILWAYS COMPANY (03/22/61)

March 22, 1961

MAIER
v.
PITTSBURGH RAILWAYS COMPANY, APPELLANT.



Appeals, Nos. 245 and 246, April T., 1960, from judgments of County Court of Allegheny County, No. 2139 of 1959, in case of Elmer H. Maier v. Pittsburgh Railways Company et al., and Emmanuel Diamond v. Joseph Reuben Jones et al. Judgments reversed.

COUNSEL

Partick M. O'Donnell, with him Parker, Evashwick & Brieger, for appellant.

Cyril C. Gunst, Jr. and Kenneth P. Christman, for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Woodside

[ 194 Pa. Super. Page 525]

OPINION BY WOODSIDE, J.

These are appeals by the Pittsburgh Railways Company from the entry of judgments in favor of the plaintiffs and against it and another defendant in each of two trespass cases after a trial before the court without a jury.

These cases arose out of an accident on Fifth Avenue, Pittsburgh, at approximately 6 P.M. on July 28, 1959. The plaintiffs' automobiles were parked on Fifth Avenue. The defendant, Jones, whose automobile was parked to the rear of the plaintiffs' vehicles, drove his car out of its parked place along the curb onto the tracks of the defendant railways company whose streetcar struck Jones's automobile, and pushed it into plaintiff Maier's station wagon, which in turn struck plaintiff Diamond's automobile. Maier sued Jones and the railways company. Diamond also sued both parties. In a consolidated trial the court found for the plaintiffs against both defendants in the amounts of $730.46 and $252.50, the agreed damage to each of the plaintiffs' vehicles. The railways company appealed in each case from the entry of the judgments against it.

The question is whether there was sufficient admissible evidence to find the appellant negligent.

The evidence upon which the trial judge was asked to find negligence was exceedingly sketchy. Maier's daughter testified that she parked Maier's station

[ 194 Pa. Super. Page 526]

    wagon along the curb, went into a building, heard a crash, looked out the window and saw that the station wagon had been hit. When she left the building, she saw that the station wagon had been pushed about 12 feet against a parking meter and forward and out a little into Diamond's car which had been parked in front of it. She testified that she saw Jones, the other defendant, there after the accident. She was asked to tell what Mr. Jones's statement was to her and replied, "Well, he had looked and pulled out ... Jones's car was stalled on the street car track and the street car hit it, throwing it into Mr. Maier's car and throwing his car into Mr. Diamond's." The other plaintiff testified that he discussed the accident with Jones at the scene of the accident and Jones said, "the street car was coming down too fast." The trial judge admitted the above hearsay testimony into evidence over the objections of counsel for the railways company on the ground that it was part of the res gestae. Jones, himself, did not appear at the hearing and, of course, did not testify.

The streetcar operator testified that he was proceeding downgrade at approximately 15 to 20 miles per hour when the Jones car pulled in front of him from the curb without warning, and that the right front of the streetcar struck the Jones car and pushed it 15 to 20 feet into the parked station wagon. On crossexamination he was asked what Jones said after the accident and replied, "He said, 'when I looked in the mirror you were at the High School.'" The High School is "a good city block" from the scene ...


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