Appeals from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1959, No. 718, in case of Leon Andrews v. Christopher Jackson et al.
Richard J. van Roden, with him Pepper, Hamilton & Scheetz, for defendant, appellant.
Joseph G. Manta, with him James M. Marsh, and LaBrum and Doak, for additional defendant, appellant.
Benjamin Pomerantz, for plaintiff, appellee.
Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., absent). Opinion by Montgomery, J.
[ 211 Pa. Super. Page 167]
This is an action of trespass growing out of the collision of two automobiles at a right angle street intersection in Philadelphia, Pennsylvania about 3:45 p.m., October 3, 1959, a clear day. Plaintiff Andrews was a passenger in the automobile of Benjamin White, the additional defendant, whose car was traveling south on Twenty-Second Street, a through street. The original defendant Jackson was driving his automobile west on York Street, a stop street, but failed to stop before proceeding to cross Twenty-Second Street. Jackson testified that he applied his brakes two car lengths from the intersection but was unable to stop due to the complete failure of the brakes, and that his car went through the stop sign and collided with White's car. Both White and the plaintiff-passenger Andrews were injured. Andrews sued Jackson, the original defendant, who brought in White as an additional defendant.
[ 211 Pa. Super. Page 168]
Following a trial, the jury returned verdicts in favor of both defendants, and against the plaintiff Andrews. Plaintiff filed a motion for a new trial which the court below granted as to both defendants. In granting a new trial the court concluded that the testimony of police officer Atkins, who arrived at the scene some five to fifteen minutes after the accident, to the effect that Jackson was unable to stop due to brake failure, was hearsay, and that error prejudicial to the plaintiff's case had been committed by its admission.
On appeal the original defendant Jackson contends the police officer's evidence was properly admitted, and a new trial should not have been granted. The additional defendant White, in a separate appeal, contends that the alleged erroneous admission of the police officer's testimony related solely to the issue between plaintiff and the original defendant Jackson; therefore, a new trial should not have been granted as to him, the additional defendant, and the jury's finding in his favor should remain undisturbed.
We conclude that the lower court properly granted a new trial on the ground that the opinion testimony of officer Atkins that Jackson was unable to stop due to brake failure was speculative, not based on knowledge of facts existing at the time of the accident, and improperly admitted into evidence. There was a vacant lot on the northeast corner of the intersection giving White a view of Jackson approaching from his left. White was traveling about twenty miles per hour four feet from the intersection when he saw Jackson's car, four car lengths east on York Street, traveling at thirty-five miles per hour. As White was four feet into the intersection he saw that Jackson was not going to stop and was unsuccessfully trying to get out of his way. Jackson stated that he applied the brakes on his 1950 Studebaker about two car lengths from the
[ 211 Pa. Super. Page 169]
intersection, but they were "gone"; and that he continued into the intersection, at the same time blowing his horn, and collided with the White vehicle. Jackson testified he had no previous trouble with his brakes and that they worked properly at the preceding street intersection. The father-in-law of Jackson, sitting beside him in the front seat of the ...