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March 15, 1972

Caesar MILES, Administrator of the Estate of Michael E. Miles, Deceased
William F. RYAN, Jr., et al.

Gorbey, District Judge.

The opinion of the court was delivered by: GORBEY

GORBEY, District Judge.

 Plaintiff's decedent, Richard E. Miles, was killed in a collision between his vehicle and defendant Ryan's vehicle on the Pennsylvania Turnpike. This diversity negligence action resulted.

 The issue of liability was severed and tried first. In answers to special interrogatories, the jury found defendant Ryan negligent, that his negligence was the proximate cause of the accident, but that the decedent, Miles, was contributorily negligent which contributed to the happening of the accident in a proximate way. *fn1" Judgment was entered upon the verdict in favor of defendant Ryan and plaintiff submitted the present motion for a new trial.

 Plaintiff asserts that the verdict for the defendant on the issue of contributory negligence was against the weight of the evidence. Attorneys for both parties agree that, if decedent's vehicle was on the traveled portion of the highway, or if decedent was operating his vehicle without lights, or both of these situations existed at the time of the collision, such evidence would sustain a finding of contributory negligence. The record discloses testimony by both defendants that decedent's vehicle was partially on the highway without lights. (n.t. 184, 185, 158, 159) Plaintiff points to contradictory testimony of decedent's passenger, Blankert, and a truck driver who came onto the scene immediately thereafter. (n.t. 50, 51, 79, 80) Defendants' testimony was corroborated by a state police officer who placed the point of impact on the highway. (n.t. 227, 228) It is well settled that because the evidence is in conflict is not good reason to interfere with the jury's verdict. The credibility of witnesses is peculiarly for the jury and it would be an invasion of the jury's province to grant a new trial under these circumstances. It is this court's view that there is ample testimony on the record, if believed, to support the jury's finding of contributory negligence.

 Plaintiff next contends it was error for the court to exclude evidence of defendant Wells' consumption of alcoholic beverages within a two-hour period of the happening of the accident. It was plaintiff's intention to show that such consumption impaired Wells' powers of observation and memory. In support of this proposition, the case of Commonwealth v. Dreibelbis, 217 Pa. Super. 257, 269 A. 2d 387 (1970) is cited. Plaintiff's reliance is misplaced. In Dreibelbis, defendant's counsel was precluded from cross-examining an alleged accomplice, a Commonwealth witness, who admitted being under the influence of drugs at the time of the crime that his observational powers were impaired. The Pennsylvania Superior Court reversed finding the circumstances sufficiently extraordinary to justify questioning the trial judge's usually wide discretion as to the scope of cross-examination when the witness sought to be cross-examined was an alleged accomplice and was the Commonwealth's principal witness. Under these circumstances, the Superior Court suggested, the very widest of latitude and the most searching of questions should be permitted. In Fisher v. Dye, 386 Pa. 141, 125 A. 2d 472 (1956), the court held that the mere fact of drinking alcoholic beverages is inadmissible unless it reasonably establishes a degree of intoxication which proves unfitness to drive. Subsequent decisions of the potential inflammatory effect of the mere mention of intoxication. See Gensemer v. Williams, 419 F.2d 1361, 1363 (3d Cir. 1970). At the time when this issue arose at trial, it was this court's considered opinion that balancing the prejudicial effect of the mention of alcoholic consumption by co-defendant passenger against the possible discrediting of his testimony which at the most was only supportive of defendant Ryan's, that such evidence should not be admitted. After further reflection and a review of the law, we are of the same mind. In addition, there was no indication that plaintiff could have laid the foundation showing an actual state of intoxication in accordance with the salutory rule of Fisher. See Gensemer, supra, 419 F.2d at 1363:

"Such evidence is considered so prejudicial that the Pennsylvania Supreme Court has stated that a 'wise' procedure in a case where evidence of drinking is offered is for the court first to hear all the testimony out of the hearing of the jury in order to determine whether it is sufficient to meet the above-mentioned standard."

 Plaintiff complains that the court erred in not permitting cross-examination of a state police officer testifying as an expert witness, on the contents of a text book on traffic investigation which the officer stated to be authoritative. A review of the notes of testimony demonstrates that although the court ruled one question objectionable, counsel was not precluded from continuing his line of inquiry or developing further cross-examination.

 Plaintiff also questions the court's instructions to the jury in a number of particulars. First, plaintiff complains of the court's failure to give the following requested instruction:

"If you find from the evidence in this case that at the time of the collision the deceased's car was stopped on the shoulder of the highway with the lights on, and had been stopped in that position for five to ten seconds before the collision, the fact that the deceased had previously backed-up his car would not be the proximate cause of the collision."

 A review of the record establishes that the court's charge on contributory negligence, considered as a whole, was fair and complete. The instruction requested by the plaintiff, being negative in form, might very well confuse a jury. In any event, it is well settled that no party has a vested interest in any particular form of instructions. Moreover, at the end of the court's charge, plaintiff agreed to withdraw this request. (n.t. 27; third day)

 Next, it is argued on behalf of plaintiff that, in the absence of an appropriate evidentiary base, it was error to instruct as to violation of that part of the Vehicle Code providing for visible rear lamps. *fn2" At trial, both defendants testified that they did not see lights lit on the decedent's vehicle. To what extent the jury may have believed this testimony is problematic. Nevertheless, with such evidence on the record, the violation of this section of the motor vehicle code was clearly a jury question and it was not only proper but necessary that the jury be instructed on it.

 Next, plaintiff objects to the court's granting certain of defendants' requests for instructions. Specifically, plaintiff complains of those instructions stating that violation of certain Pennsylvania Turnpike Regulations would be negligence per se. *fn3"

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