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HARRISON v. NICHOLS (09/21/71)

decided: September 21, 1971.

HARRISON
v.
NICHOLS, APPELLANT



Appeal from order of Court of Common Pleas of Delaware County, No. 8160 of 1969, in case of James Harrison v. Anna C. Nichols.

COUNSEL

Joseph T. Labrum, Jr., with him Fronefield, deFuria & Petrikin, for appellant.

Alexander A. DiSanti, with him Richard, Brian, DiSanti & Hamilton, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 219 Pa. Super. Page 429]

James Harrison, a pedestrian, brought suit for his personal injuries after he was struck and injured on April 16, 1969, by a vehicle driven by Anna C. Nichols. The jury found in favor of the defendant. The court en banc awarded plaintiff a new trial and defendant appeals.

The trial court has wide discretion in determining whether or not to grant a new trial. "On appeal such an order will not be reversed unless a palpable abuse of discretion clearly appears or unless an erroneous rule of law, which under the circumstances necessarily controlled the outcome of the case, is certified by the court below as the sole reason for its action or, without such certification, the court's opinion clearly indicates this to be the case. . . ." Geelen v. Pennsylvania R.R. Co., 400 Pa. 240, 244, 161 A.2d 595, 598 (1960). The court below neither abused its discretion nor applied an erroneous rule of law and is affirmed.

The trial judge who wrote the opinion for the court en banc gave two reasons for the grant of a new trial. The first reason was based on improper cross-examination of the plaintiff and the second reason concerned the trial judge's charge on contributory negligence.

On direct examination the plaintiff testified that he was living with his wife and children at the time of trial which occurred more than a year after the accident. On cross-examination it was brought out that he was living with another woman at the time of the accident. Objection was made but overruled. He was then asked when he began living with his wife again. When he answered that he had resumed living with her about two weeks after he got out of the hospital, defense counsel further cross-examined him on his deposition

[ 219 Pa. Super. Page 430]

    where he had indicated that he resumed living with his wife about three months after he left the hospital. The trial judge permitted the cross-examination despite objection. In its opinion the lower court concluded that the cross-examination was prejudicial to plaintiff and that contradiction on a collateral matter was improperly used to impeach the plaintiff's credibility. The question of improper cross-examination was ably handled by the lower court and its determination of that question is affirmed on the opinion of Judge Lippincott for the court below.

The court below felt that it had erred in its charge on negligence and contributory negligence. It analyzed its charge as instructing the jury that defendant's negligence had to be a proximate cause or substantial factor in causing the accident and that plaintiff's contributory negligence would bar him if it contributed in any manner, however insubstantial, to the accident. Accepting the lower court's evaluation of its charge it was justified by following Crane v. Neal, 389 Pa. 329, 132 A.2d 675 (1957), where it was held reversible error to charge that contributory negligence must be a proximate ...


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