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JAMISON v. KLINE

November 20, 1970

Howard JAMISON, Administrator of the Estate of Lawrence F. Tomlinson, Deceased, Plaintiff,
v.
John Thomas KLINE, Defendant


Weis, District Judge.


The opinion of the court was delivered by: WEIS

The dangers inherent in the now thoroughly discredited three-lane highway design are tragically illustrated in this case involving a fatal accident which occurred on U.S. Route 22 in Westmoreland County, Pennsylvania. The two car collision occurred on December 3, 1965 at about 7:30 P.M., when it was dark, clear, and dry. The plaintiff's decedent, accompanied by two passengers, had been proceeding in a westerly direction and the defendant, who was traveling alone, had been driving in an easterly direction.

 At the time of the impact, the defendant's automobile was occupying the center lane and, while the testimony did not clearly establish the location of the plaintiff's car, seemingly most of it was in its proper right-hand or the north lane but with some portion of the vehicle angled into the center lane. The plaintiff's theory was that the decedent's automobile had moved partially into the center lane and was attempting to get back completely into its right hand lane but was unable to do so because there was not enough time. The defendant contended that he had occupied the center lane before the decedent pulled into that passing area and this violated Kline's right of way.

 The jury returned a verdict in favor of the defendant which could be justified by finding that the defendant was not negligent or, as appears more probable to the court, that both drivers were at fault to some degree and that their joint negligence brought about the tragedy.

 Plaintiff urges two errors in admission and exclusion of evidence as a basis for his motion for a new trial.

 About three miles west of the accident scene, a state trooper noticed the defendant's automobile proceeding past him at what he said was a "faster rate of speed than the other vehicles on the road", and that he then proceeded to go east "just to see if I would be able to pick a * * * catch the speeding vehicle, which I thought was speeding, and possibly clock it for speeding." (Tr. p. 9) The policeman did not again see the defendant's automobile until after the accident had occurred.

 An offer of the plaintiff to elicit from the state policeman the speed at which the defendant's automobile was proceeding when first seen was refused on the ground that speed at a point three miles from the point of collision was too remote absent evidence to show that the vehicle continued at the same pace until the point of collision.

 In Finnerty v. Darby, 391 Pa. 300, 138 A. 2d 117 (1958) testimony of a witness as to the speed of a vehicle one-half mile before the point of collision was held admissible but there was also evidence that the vehicle maintained about the same rate from that point to where it became involved in the accident. Significantly, however, in its opinion the Pennsylvania court said:

 
"If the only evidence of plaintiff's speed was that of the witness Ling that the plaintiff's car when it passed him was traveling 50 miles an hour, appellant's objection to the admissibility of such evidence might be considered well taken."

 The rule, however, seems to be as the court indicated:

 
"Whether the evidence of speed is too remote in time and distance depends upon the facts of each case, and to an extent where it is the only evidence or is corroborative of other admissible evidence of speed."

 In the state of the record of this case, it does not appear to have been error to exclude the proffered evidence.

 A more serious contention, however, is raised by the plaintiff with respect to other evidence produced on defendant's cross-examination of the same state policeman.

 On direct examination, the trooper testified that the defendant's automobile left straight skid marks of 117 feet completely within the center or passing lane up to the point of collision. On cross-examination, without any preliminary qualifying ...


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