Staley, Chief Judge, and Kalodner and Freedman, Circuit Judges.
In the instant case the plaintiff, Theckla B. Webb, a passenger in an automobile operated by Carl C. Stalcup, was seriously injured in a collision between Stalcup's car and an automobile operated by Jason A. Martin on July 7, 1960 on Route 11, some two miles north of Greencastle, Pennsylvania. She brought suit against Martin on February 7, 1962. Martin was killed in an automobile accident on March 31, 1962 and Lloyd K. Martin, the Administrator of his estate, was substituted as defendant. Thereafter Stalcup was joined as a third party defendant and Stalcup counterclaimed against the defendant.
The case was tried to the Court below without a jury and pursuant to its fact-finding that Jason A. Martin was free of negligence and that the accident occurred solely by reason of Stalcup's negligence,*fn1 it entered judgment against the plaintiff and in favor of the defendant.*fn2 This appeal followed.
Since this is a diversity action*fn3 Pennsylvania law governs.
On this appeal the plaintiff contends that inasmuch as Jason Martin was killed in an accident other than that here involved, the trial court erred in according to him the benefit of the Pennsylvania presumption of due care in the operation of his automobile, and that it further erred in excluding a transcript of Martin's testimony, with respect to the happening of the instant accident, in a criminal proceeding in a Pennsylvania court on October 11, 1960.*fn4 The plaintiff's position on her first point is that the Pennsylvania presumption of due care enures only to the benefit of an operator of a vehicle who dies as the result of the accident involved in the action being tried. Her position on the second point is that Martin's excluded testimony was admissible as an admission against interest under Pennsylvania law.
These facts are undisputed:
The scene of the accident was Route 11, a three-lane concrete highway running north and south with its center lane used by vehicles moving in either direction; each lane is 11 feet wide; the highway was posted for an allowable speed of 50 miles per hour; it was daylight and clear and the road surface was dry; Stalcup's car had been proceeding in the northbound lane before it made a left-hand turn across the center and southbound lanes to enter a driveway of the Castle Motel located on the west side of the highway; Martin's car was proceeding southbound in the south lane when it collided with the Stalcup car.
The plaintiff's version as adduced at the trial may be summed up as follows: as Stalcup approached a point in the highway abreast of the motel driveway he put on his left-hand turn signal and stopped in the northbound lane until the center lane was clear in both directions; when Stalcup began his left-hand turn Martin's car was at least 300 feet away; as the Stalcup car was entering the motel driveway after almost clearing the southbound lane it was struck by Martin's car; Stalcup was travelling at about five miles per hour when the collision occurred and Martin's car at a speed in excess of 50 miles per hour; the plaintiff, who occupied the right front seat in Stalcup's car, was thrown out of the car and suffered numerous fractures, some of which have failed to heal leaving her totally disabled.
The plaintiff's version was presented by the oral testimony of Stalcup, and Mr. and Mrs. Donato, owners of the motel, and a transcript of the testimony of Jason Martin at the criminal proceeding in the Pennsylvania court earlier referred to. Martin in that testimony had said that when he first observed the Stalcup car "it was at least a football field away"; that at that time he was "driving the speed limit" (50 miles per hour) or perhaps more, because "It's easy to go over the speed limit in that car".
It must immediately be noted that the defendant's counsel objected to the admission of the transcript and the trial court reserved ruling on its admissibility. The record discloses that the trial court never ruled on the issue of admissibility, and since in its opinion it adverted only to the evidence of the witnesses who gave oral testimony on both sides, it is an inescapable inference that it excluded the transcript of Martin's testimony in arriving at its verdict.
In its Opinion the trial court made it clear that it based its verdict on its rejection of the oral testimony of the plaintiff's witnesses; its crediting of the testimony of Mrs. Brakefield,*fn5 and its expressed view that since Martin had died before trial "There is, therefore, a presumption of due care on his part."
In our opinion the trial court erred in its view that Martin was entitled to a presumption of due care because he had died prior to trial, and since it is impossible to ascertain from its opinion the extent to which it influenced its verdict in the defendant's favor its judgment pursuant to that verdict must be reversed.
The Pennsylvania cases only hold that one who is killed in an accident, or is bereft of his memory of it by reason of the accident, is entitled to a presumption that he was exercising due care at the time of that accident. The Pennsylvania courts have never held that one who subsequently dies as a result of causes or injuries unrelated to a particular ...