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Eschelbach v. William S. Scull Co.

August 1, 1961


Author: Mclaughlin

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This personal injury action arises out of a collision of two automobiles. It resulted in a jury verdict for the defendant.

Plaintiff driver argues three points for reversal. First, he contends that the trial court seriously erred in allowing the defense to probe the extent of his drinking alcoholic beverage during the relevant period.

The accident occurred Saturday night, November 9, 1957, about 9:30. Plaintiff had been down at Ocean View on the south New Jersey shore "for a change, for recreation" since the previous day. He left there around 7:30 to 7:45 P.M. for his home in Langhorne, Pennsylvania. He was headed approximately north on Weymouth Road toward the Black Horse Pike. The location of the accident was about two miles beyond Mays Landing which in turn was 25 to 30 miles from Ocean View. According to the plaintiff, in the collision area, the road was about 40 feet wide, straight away, with a little crown on it. The black top of the road was around 20 feet wide with 12 feet pavement or gravel shoulders on each side of it. It was a clear and dry night. He said his passenger automobile was traveling about 30 miles an hour; that he saw the defendant's truck coming towards him at a speed of 50 miles an hour on its own side of the road; when it was 10 to 12 feet away from him it made a left turn directly into his machine which was then about a foot or two off the black part of the road and on the gravel on his right side of the road; that the right fender of the truck struck his left front; that he had stopped his car prior to the collision and that it was not in motion at that time.

John Michel, the driver for the defendant said that he was operating the truck in a southerly direction on Weymouth Road, that he saw the plaintiff's headlights about two city blocks ahead of him and they seemed to be on the truck's side of the road; that he went over to his right as far as he could, blinked his lights and blew his horn "but he kept coming at me." He had slowed down to practically a stop. When plaintiff's car was 20 feet or so in front of him, Michel "knew he was going to hit me" so he "* * * swerved to the left and tried to get out of the way * * *." The other car itself swerved and hit the truck "before I got over there." Michel stated that Eschelbach "* * * to me he looked like he had been drinking." Harry Rambo was a passenger in the truck. He said that "it looked like the lights were making a left turn off the highway and then they came towards us." And he generally corroborated Michel's evidence.

New Jersey State Trooper Olsen was at the scene of the collision shortly after the event. He talked with plaintiff then and a little later at the hospital. He testified that "I had asked him (plaintiff) if he was drinking and he said he had but he did not know how much." The trooper "* * * found from the skid marks that the number one vehicle (truck) was swerving towards the left side of the road to avoid a head-on collision which, at the last minute, the number two vehicle (plaintiff's) swerved towards the right side and they met headon, now there was no reason to disbelieve Mr. Michel's statement and additionally at the scene we had the skid marks."

On cross-examination, plaintiff was shown an interrogatory addressed to him reading, "What speed was your vehicle traveling immediately prior to the accident?" His answer to it was "Approximately 45 miles per hour." He denied he had said that. He was shown another interrogatory of a separate set which asked him to "State the respective speeds of the vehicles at the time of the impact." Plaintiff's answer to that was "Plaintiff approximately 40 to 45 miles an hour and defendant's speed unknown." He said he did not recall this. He was asked "* * * which is the correct version, what you gave us under oath in September, 1959 (the above answers to interrogatories) or what you are giving us under oath today * * *?" He answered "Today's". He said he understood the speed limit on Weymouth Road to be 50 miles an hour.*fn1

At Mays Landing, plaintiff stopped at what he described as "A restaurant. I don't know if you would call it a taproom or what." He did not have any food there. He said that he was in the place an hour or an hour and a half, something like that and that he had "two beers" during that time.

He was asked, "Did those beers have any effect on you at all?" The answer was "No". He was next referred to his pretrial deposition and asked "Did you on that occasion tell me that you drank 30 beers over an afternoon?" The question was objected to, allowed as proper cross-examination and the answer was "Yes". Then came the following questions and answers:

"Q. And did you have your 30 beers on the afternoon before the happening of this accident? A. No. I am talking about the time that I was home.

"Q. Well, your answer is that you did not have these 30 beers? A. That is right.

"Q. That is, on the afternoon preceding the happening of this accident? A. That is right.

"Q. You say you restricted yourself to two beers at Kelly's? A. Yes, sir.

"Q. And that was during the period of about an hour and a half? A. Yes.

"Q. All right, and to your recollection, you say, that those two beers had no effect on you whatsoever? A. That is right.

"Q. On the occasion when you consumed 30 glasses of beer, did they have any effect on you, Mr. Eschelbach? A. No."

After it had been answered, the last above question was objected to as "irrelevant, immaterial and incompetent".

On redirect examination there was the following sequence of questions and answers:

"Q. Mr. Eschelbach, you were questioned about your stay at ...

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