Therefore, it was fully appropriate for the jury to have the fire marshal's report before them in their deliberations in order that they might consider all theories of the cause of the fire.
The plaintiff complains that he should not have been foreclosed from cross-examining the fire marshal to find out the context of what was said to him by the decedent and Jose Bruno. The statements made by the decedent were double hearsay. The interview took place at the hospital after the accident and, therefore, the accuracy of the answers is highly questionable. The dying declaration, res gestae, and statements against interest exceptions to the hearsay rule were not applicable here; the statements would be self-serving, and not subject to cross-examination. In addition an interpreter was employed but he was not called to testify. The statements of Jose Bruno, who was not available for trial, were hearsay and were merely speculative regarding the conduct of Mr. Bruno and the cause of the accident because he was not an eyewitness. The testimony of both these parties was properly excluded.
The plaintiff contends that the testimony by Mrs. Bruno, that she and one of her children who could speak English had gone to see Mr. DeMarco to complain about the gas smell in her home and that her child acted as an interpreter when she made the complaint (T.R. 63-66), having been stricken, should have been reinstated. It was first stricken because it was hearsay and there was no evidence that the conversation was accurately translated. The plaintiff contends that Mr. DeMarco's testimony, at pages 620-621, established that Mr. DeMarco could understand Spanish, thus obviating the necessity of showing the accuracy of the translation. However, Mr. DeMarco merely indicated that he knew a little Spanish. He stated that he only knew a few words of Spanish and that he could understand some things. He admitted that he could understand the words for "gas range" or "smell of gas." (T.R. 620-621). He did not state that he could converse in Spanish. Obviously, if he had a good understanding of the language, the interpreter would not have been necessary. Because Mr. DeMarco did not have a full understanding of Spanish, it would have been inappropriate to reinstate Mrs. Bruno's testimony that she complained of the gas leak to Mr. DeMarco. In addition Mr. DeMarco's understanding of Spanish would in no way cure Mrs. Bruno's inability to understand English because Mr. DeMarco contradicted Mrs. Bruno when he testified that no complaints of gas leaks were ever made to him. (T.R. 603).
The plaintiff contends that it was improper for this court to allow the Philadelphia Gas Works to call the witnesses of Frank Parisi for cross-examination and vice versa. Upon reviewing the transcript in this case, it appears that the plaintiff neglected to object to this practice until the trial was nearly completed. (T.R. 809-811). Some early reference to the order of examination was made at pages 677-678 of the Trial Transcript but no reference was made to defendant's call in each other's witnesses as of cross-examination at that time. Rule 43(b) of the Federal Rules of Civil Procedure permits cross-examination of adverse parties. The plaintiff objected to the defendants' cross-examining each other's witnesses on the grounds that they were not adverse within the meaning of Rule 43(b) because cross-claims had not been filed. However, the suits were originally separate and had been consolidated for trial. The defendants' represented conflicting interests and although they could all be held liable for the death of Mr. Bruno, each could be held solely liable or be required to contribute a portion of the verdict. Under these circumstances, the cross-examination was appropriate. Even if this procedure was subject to timely objection, the objection was made so late in the trial as to make correction or change of no consequence and the continued use of leading questions harmless.
The plaintiff lastly contends that the court should have permitted him to read in its entirety plaintiff's Interrogatory No. 10 and the answer by the Gas Works. The excluded portion of the answer made by the defendant, Gas Works, was tantamount to a refusal to answer more specifically because the interrogatory was too general. The portion of the answer having any probative value in this case was read to the jury.
A careful review of the record indicates that all relevant issues were capably and fairly presented to the jury by counsel, and that the jury was properly instructed as to the law. The issues were clearly matters for the jury's determination. Although a new trial might conceivably result in a different verdict more satisfactory to plaintiff, this hope or expectation would clearly not be the basis for the grant of a new trial. The verdict was fully justified by the weight of the evidence and the law. The motion for a new trial must be denied.
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