McLaughlin, Ganey and Seitz, Circuit Judges.
McLAUGHLIN, Circuit Judge.
On September 26, 1961 there was a collision between two automobiles in the intersection of State Highway 663 with Swamp Pike, a county road, in the Township of New Hanover, Montgomery County, Pennsylvania. R. Harland Horton was alone in his car and proceeding west on Swamp Pike. Albert A. Canning, also alone, was driving his machine north on Highway 663. Mr. Horton was badly injured and died as a result about five hours after the accident. This suit was brought on behalf of his widow and his estate, against Canning. The complaint alleged that the accident was caused by the negligence of the defendant. The latter in his answer denied he was negligent and as an affirmative defense, said "The plaintiff was negligent and such negligence contributed materially to the accident." The action was tried in November 1965. It resulted in verdicts in favor of the plaintiff administrator. Defendant appealed from the resultant judgment.
At the time of trial the defendant was suffering from a stroke and unable to appear. There were no eye witnesses produced by either side. State trooper Stone who came to the scene shortly after the accident and a former State trooper, then in private employment, who arrived prior to Stone, were the only witnesses on behalf of plaintiff regarding the accident. There were no witnesses called by the defense.
The ex trooper had taken some pictures of the cars, roadway, etc. These were marked into evidence. Trooper Stone as a witness shown one of said photographs, was asked on direct:
"Were you able to determine, Officer, again looking at P-6, whether the skid marks in question shown by this photograph were made by either of the vehicles involved in the accident?" He had answered in part "Yes sir; they were --", when the defense attorney objected, saying "To my mind, your Honor, that is not investigation of an accident; that is rendering expert opinion for purposes of a law suit." The Court, holding the witness qualified, permitted him to answer a rephrased question to the same effect. Stone was then asked another rephrased question:
"Based on your expertise in investigating automobile accidents as a state police officer, and further based on your experience at the scene of this accident, and your conversation with the defendant, do you have an opinion as to the cause of this accident?"
The original of that query had been objected to because as the defense attorney argued "It is the ultimate fact that this jury is asked to determine, and without any eyewitness account of what actually occurred, I submit there is insufficient basis to support an opinion."
The rephrased question was objected to "So the record may be consistent, my objection also goes to the rephrased question."
The Court said, "Naturally. Exception granted" and allowed the trooper to answer the question, which he did saying: " The accident was caused by Mr. Canning's failure to stop at the stop sign." (Emphasis supplied).
The trooper testified at considerable length regarding his other conclusions about the accident. For example, on redirect there were the following questions and answers:
"Q. Trooper Stone, would the direction in which the vehicles traveled after impact have any bearing upon your determination as to whether or not the Horton car was speeding?
A. There again we are bringing into this weight and everything else; I would have to form the ...