The opinion of the court was delivered by: KRAFT
In this case, we think, some explanatory foreword is essential to a proper understanding of the relationships of the parties and the mode of submission of the liability issue between remaining two parties herein.
On the morning of January 14, 1965 Waverly Davis, an employee of Philip Pearlman, was operating a truck, owned by Pearlman, in which Frank Lambert, Davis' fellow-employee, was a passenger. This truck had proceeded northwardly on Route 100 in Chester County, Pennsylvania to a point where it attempted to make a left turn across the southbound lane of Route 100, in the course of which it was involved in a collision with a southbound passenger vehicle owned by John T. Flanagan and operated by his daughter, Mary Flanagan Duzy, whose mother accompanied her as a passenger.
Lambert sued Flanagan and his daughter, who then joined Pearlman and Davis, as third-party defendants, in a claim for contribution. Pearlman and Davis interposed the defense, among others, that, as to them, Lambert's remedies were limited to those afforded by the Pennsylvania Workmen's Compensation Law. Additionally, Davis filed a counterclaim against Flanagan and his daughter for injuries claimed by Davis. Flanagan's daughter then filed a crossclaim against Pearlman and Davis for her injuries. Flanagan's wife brought a separate suit in the State Court.
At pre-trial conference the pre-trial Judge ordered trial to be had initially on the issues of liability. After the case was called for trial, but before selection of a jury, John T. Flanagan ceased to be a party by agreement and all claims of all parties, except that of Davis against Flanagan's daughter, were amicably settled. Davis' counsel, because of the pre-trial order, was prepared only to try the liability issue, to which the trial judge readily assented. Counsel then agreed, to avoid possible confusion of the jury, that Davis (counter-claimant) and Mary Flanagan Duzy (defendant in the counterclaim) should be referred to throughout the trial as plaintiff and defendant, respectively.
Davis now seeks a new trial, assigning the following reasons:
"1. The Trial Judge erred in instructing the jury that it could conclude that Frank Lambert would have testified against the counter-claimant because the said Frank Lambert was not called as a witness by him."
"2. The Trial Judge erred in interpreting the testimony in the case concerning measurements and distances."
"3. The Trial Judge erred in referring to a presumption of due care on the part of the plaintiff."
"4. The Trial Judge erred in directing counsel for the counter-claimant, in the presence of the jury, to elect whether to except to the charge of the Trial Judge in the presence of the jury or out of the presence of the jury."
In support of his first reason, Davis argues that Lambert, his fellow-employee who was a passenger in the truck, was equally available to Mary Flanagan Duzy, and that was error, therefore, to charge that the jury could draw an unfavorable inference from Davis' failure, without explanation, to call Lambert as a witness.
There was evidence that Lambert was Davis' fellow-employee and the only other occupant of the front seat of the truck. There was no evidence to show that Lambert was no longer a fellow-employee, that he had no recollection of the event or that he was unavailable. He had, in fact, been present when the case, in toto, was called for trial and, at least, until his claim was settled.
Davis, as did the appellee in Bayout v. Bayout, 373 Pa. 549, 555, 96 A.2d 876, 879 * * * "overlooks the rule that as plaintiff he had the burden of proving * * *" defendant's negligence * * * "and failure to produce informed and competent witnesses militates most strongly against the party having the burden of proof, and that this rule is ...