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HOUSTON ET VIR v. CANON BOWL (06/28/71)

decided: June 28, 1971.

HOUSTON ET VIR, APPELLANTS,
v.
CANON BOWL, INC.



Appeal from order of Court of Common Pleas of Washington County, July T., 1967, No. 233, in case of Catherine A. Houston and Wayne Houston, her husband v. Canon Bowl, Inc.

COUNSEL

Harry J. Gruener, with him Howard A. Specter, and Litman, Litman, Harris & Specter, for appellants.

Carl A. Eck, with him John E. Hall, and Meyer, Darragh, Buckler, Bebenek & Eck, for appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri.

Author: Barbieri

[ 443 Pa. Page 384]

This case, which comes to us from the Court of Common Pleas of Washington County, arises out of an accident which took place on September 27, 1966, at appellee Canon Bowl's bowling alley. Plaintiff was going into her slide while delivering a ball on the fifth frame of the second game when her left foot unexpectedly stopped sliding. She fell and sustained bodily injuries. The trial judge nonsuited the plaintiff. Plaintiff's motion to take off the non-suit was denied by the Court en banc. It is from that order that plaintiff now appeals.

Plaintiff-appellant raises two issues on appeal: (1) that it was reversible error for the trial court to bar, on appellee's objection, appellant's expert witness from testifying and to disallow the introduction of a moving picture; and (2) that there was sufficient circumstantial evidence of appellee's negligence for the case to have been given to the jury. We believe that both of these questions were correctly decided by the court below and therefore affirm.

The plaintiff offered to call a qualified consulting engineer and chemist who was an expert on friction

[ 443 Pa. Page 385]

    producing substances and coefficiency of friction. The expert would have testified to the "factors that create or can create a non-uniform or sticky approach in a bowling alley." He also would have testified that the application of steel wool underfoot would create sticky spots, and that in his opinion, eliminating the other possible causes, it was a sticky spot caused by such use of steel wool that caused the plaintiff to fall.

The trial court refused to allow this expert to testify. The following colloquy took place during appellant's argument on the offer: "The Court: Is it my understanding he never made a physical inspection of the wood on lane No. 9? Appellant's Counsel: He has not, your Honor, but will testify further that, well first the defect might not be entirely visible to a bowler. He does not say because she fell, and we don't say because she fell it must have been because they used steel wool under foot. What we intend to do by this expert, because of his expertise in the field, is rule out the other possible or likely causes of sticking on approaches."

We find that the trial court's ruling was correct for at least three reasons. First, an expert witness can testify to the cause of an accident only if he either made a personal observation of the scene of the accident or answers hypothetical questions based on certain assumptions, those assumptions being based upon "such facts as the jury would be warranted in finding from the evidence." Battistone v. Benedetti, 385 Pa. 163, 170, 122 A.2d 536 (1956). See also Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Laubach v. Haigh, 433 Pa. 487, 252 A.2d 682 (1969). In our case, the expert admitted that he made no personal examination of the lane. Nor could he assume a defect ...


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