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MCGOLDRICK v. PENNSYLVANIA RAILROAD COMPANY (07/01/68)

decided: July 1, 1968.

MCGOLDRICK, APPELLANT,
v.
PENNSYLVANIA RAILROAD COMPANY



Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1960, No. 2004, in case of Francis McGoldrick v. The Pennsylvania Railroad Company.

COUNSEL

Herbert K. Fisher, with him Bloom, Ocks & Fisher, for appellant.

F. Hastings Griffin, Jr., with him Dechert, Price & Rhoads, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Eagen

[ 430 Pa. Page 598]

In this action to recover damages for personal injuries allegedly caused by the negligence of employees of the defendant, the jury returned a verdict for the defendant. After plaintiff's motion for a new trial was dimissed, judgment was entered on the verdict. This appeal followed.

The injuries resulted from a collision between an automobile owned by the plaintiff, in which he and four friends were riding, and a Diesel engine operated

[ 430 Pa. Page 599]

    by employees of the defendant. Plaintiff's automobile at the time was traveling north on Delaware Avenue in the city of Philadelphia and the defendant's engine was located on a lead track extending across Delaware Avenue from Pier 98 south to tracks on the westerly side of Delaware Avenue. As a result of the collision, plaintiff suffered severe personal injuries and a loss of memory as to all circumstances and happenings immediately prior to and at the time of the accident.

Before the accident, plaintiff and his group of friends had an outing or picnic in an area on the banks of the Delaware River in South Philadelphia. At trial one of those in attendance testified for the plaintiff during direct examination that he did not see any whisky at the picnic, but did see "about two bottles of beer." On cross-examination plaintiff himself admitted having consumed about one-third of a quart of beer while at the picnic. There was no other evidence that plaintiff personally consumed any intoxicants prior to the accident or suffered from any degree of intoxication.

For the purpose of impeaching the witness who testified about the absence of intoxicants at the picnic, the trial court, over objection, permitted a qualified pathologist to testify that he performed an autopsy on the body of one of the individuals riding in plaintiff's automobile, who had been killed in the accident;*fn1 that the percentage of alcohol in this decedent's blood indicated he had consumed the equivalent of 7-9 ounces of 100-proof whisky, or 7-9 bottles of beer; that these findings were confirmed by an urinalysis and an examination of the stomach contents; and that the last mentioned examination, in itself, showed this decedent had been drinking intoxicants within an hour or two of the time of his death.

[ 430 Pa. Page 600]

It is a well recognized principle of law that a witness may not be contradicted on "collateral" matters. Zubrod v. Kuhn, 357 Pa. 200, 53 A.2d 604 (1947). As we stated in Commonwealth v. Petrillo, 341 Pa. 209, 223, 19 A.2d 288, 295 (1941): "No witness can be contradicted on everything he testified to in order to 'test his credibility.' The pivotal issues in a trial cannot be 'sidetracked' for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial." Contradicting evidence is "collateral" if it may not be admitted at trial for any purpose independent of the contradiction. Commonwealth v. Petrillo, supra at 224, 19 A.2d at 295; Commonwealth v. Neill, 362 Pa. 507, 521, 67 A.2d 276, 282 (1949) (concurring opinion); 3 Wigmore, Evidence, ยง 1003 (3d ed. 1940). Evidence that one of the deceased passengers in plaintiff's automobile had been drinking heavily before the accident was clearly inadmissible apart from the contradiction. See Wentworth v. Doliner, 399 Pa. 356, 160 A.2d 562 (1960). The evidence introduced during plaintiff's case in chief indicating that there had been ...


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