Appeal from judgment of Court of Common Pleas of Montgomery County, No. 65-6941, in case of Eugene F. O'Donnell v. William Alfred Bachelor.
Henry T. Reath, with him Duane, Morris & Heckscher, for appellant.
E. William Heuser, with him Jonathan H. DeYoung, and Torak and DeYoung, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones, Mr. Justice Eagen and Mr. Justice O'Brien concur in the result. Concurring Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts.
On the night of January 9, 1965, Eugene F. O'Donnell, and his wife, in an understandable desire to satisfy a yearning for pizza, drove from their home in Merion to Lower Merion Township, to obtain a pizza at Mama's Pizzeria located on Belmont Avenue. He parked his car in an empty lot on the south side of the highway and crossed over the road to make his purchase. Then, with his treasure under his arm, he started back to his automobile, where his wife awaited him. When he was about one-third of the way across, he noted an automobile traveling in an eastwardly direction on the other side of the roadway. He stopped to let the car pass. He was to testify later: "I stood there waiting for him to go by, waiting to cross the street, but instead he came over and hit me. It was as simple as that."
The violence of the impact was such that O'Donnell was catapulted into the air and landed in the parking lot, sustaining, through the collision and the landing, grave injuries, the nature and extent of which it is not necessary to specify here. The driver of the colliding car was William Alfred Bachelor, against whom O'Donnell brought a suit in trespass. At the ensuing trial, the jury returned a verdict in favor of the defendant, and the plaintiff has appealed, requesting a new trial, urging trial errors.
The defendant testified that when he first saw O'Donnell on the street, he was 194 feet away from him, and that he was traveling at 15 miles per hour, so that, under normal conditions he could have easily stopped his car to avoid striking the pedestrian. However, he testified that the plaintiff walked in front of his lane of travel.
Thus, the issue of fact left to the jury to decide was whether the defendant left his assigned portion of the
highway and crossed over to where the plaintiff had the right to be and struck him there, or whether the plaintiff placed himself in the line of collision. To bolster the defendant's version of how the accident occurred, defendant's counsel called to the witness stand a William Rock who had visited the plaintiff while he was in the hospital and had talked to him. In relating what occurred in his conversation with the plaintiff, Rock testified: "He noticed that Mr. Bachelor was coming fast. For a minute he was undecided as to whether to run across or to turn around and go back from whence he came. He decided he had to run across, so he ran but he did not make it. The right front fender near the headlight of the car struck him and that is the last he remembered."
It cannot be doubted that Rock's testimony inflicted a crippling blow to the plaintiff's case because, if believed, it convicted O'Donnell of contributory negligence. Indeed, after about three hours of deliberation after the case had been submitted to them, the jury sent a note to the judge: "We are deadlocked on contributory negligence. We have been debating this one question all afternoon and cannot reach agreement."
The judge advised the jury by a written note: "Please continue in an effort to reach agreement. At 6 p.m. we will recess until 8:30 p.m."
At 8:45, the jury returned its verdict for the defendant.
Since Rock's testimony could well have been the catalysis which precipitated the verdict, it is in order to inquire who was Rock and what was he doing in an injured man's room in the hospital where, suffering from a smashed hip and holes in his knees, he was trussed up in a skeletal traction, agonizing under muscle spasms of such severity that at times he became delirious. Rock admitted that he talked to the plaintiff
while the latter was under sedation to allay his otherwise unbearable pain. Was Rock an impartial witness?
Under direct examination Rock was merely identified as a private investigator engaged by Malcolm Waldron, an attorney. In an attempt to learn what bias or prejudice Rock might have entertained in the legal controversy, plaintiff's counsel questioned Rock as follows: "Q. Mr. Rock you told us that you were engaged to investigate this accident, is that correct? A. Yes, sir. Q. You were engaged by Mr. Malcolm Waldron? A. Yes, sir. Q. Who is Mr. Waldron? A. He is an attorney. Q. For whom?"
At this point the trial judge intervened: "He is an attorney. That is sufficient."
It was not sufficient, and the judge's intervention at this point was a non sequitur. The plaintiff had the right to know who was Malcolm Waldron, what connection he had with the case, and whom if anybody he represented. Once a witness commits himself to the ocean of a legal controversy, he must, under crossexamination, disclose the flag under which he sails. Rock refused to do this and the trial judge unwittingly gave support to Rock's defiance of the rules of evidence, and cardinal principles of justice. The judge, in defending his ruling, explained that Waldron was "an attorney associated with defendant's counsel." There is nothing in the record to establish such an association.
There is indication that Rock was not an impartial witness nor an impartial investigator and that he was employed by the insurance company which carried the defendant's insurance against personal liability. On February 24, 1965, Rock, in making a report to a Mel Allen, connected with the insurance carrier, said: "This is a status ...