Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1960, No. 1278, in case of Willie Flowers v. Bizzell Green.
Gerald J. Cohen, for appellant.
Sheldon Tabb, with him Needleman and Needleman, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno.
This is a conventional personal injury case. The plaintiff was crossing a street when he was struck by an automobile driven by the defendant. The jury returned a verdict for the plaintiff and the defendant appealed, submitting various questions for review.
He argues he was entitled to a non-suit on the basis that the plaintiff was guilty of contributory negligence since the plaintiff testified that he had advanced into a street seven or eight feet when the defendant's automobile, which later hit him, was 70 or 80 feet away. Whether the plaintiff acted as a reasonably prudent person was a question for the jury to determine. The defendant argues that the plaintiff should have continued to look both ways as he crossed the street. A pedestrian is not like Janus in Roman mythology, equipped with two pairs of eyes, permitting him to look in opposite directions simultaneously. He is required by law only to due care and prudence under the circumstances. The evidence does not reveal that he so violated the rule in this respect as to warrant the entering of a non-suit. (Campbell v. Balis, 380 Pa. 245; Weidemoyer v. Swartz, 407 Pa. 282.)
At the termination of the defendant's case, the plaintiff called the defendant for cross-examination. The defendant complains this was improper. This procedure
is proper only as rebuttal if evidence adduced during the trial impels the plaintiff to reply through cross-examination of the opposing party. Whether the matter covered in cross-examination amounted to rebuttal or not was a matter in the sound discretion of the trial judge. In Schoen v. Elsasser, 315 Pa. 65, this Court said: "A litigant has the privilege of offering rebuttal testimony, and where the evidence proposed goes to the impeachment of the testimony of his opponent's witnesses, it is admissible as a matter of right. Rebuttal is proper where facts discrediting the proponent's witnesses have been offered: Wigmore on Evidence, 2d. edition, volume 4, page 20, section 1873. 'For matters properly not evidential until the rebuttal, the proponent has a right to put them in at that time, and they are therefore not subject to the discretionary exclusion of the trial court'."
It is not apparent that the trial judge erred in his ruling on this point in the case.
During the cross-examination above adverted to, plaintiff's counsel asked many questions to which defendant's counsel objected, which objections were sustained by the court. The defendant argues that this persistence on the part of the plaintiff amounted to misconduct which should have called for the withdrawal of a juror and the declaration of a mistrial. This again was a matter which addressed itself to the sound discretion of the trial judge. In addition, defendant's counsel made no motion for the withdrawal of a juror. (Narciso v. Mauch Chunk, 369 Pa. 549.)
In cross-examining the defendant, plaintiff's counsel attempted to introduce depositions for the purpose of discrediting the defendant. The court excluded the depositions. Defendant's counsel argues that this constituted an attempt on the part of the plaintiff to impeach his own witness. The ...