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RUSSELL v. HELM'S EXPRESS (06/15/72)

decided: June 15, 1972.

RUSSELL, APPELLANT,
v.
HELM'S EXPRESS, INC.



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1967, No. 1794, in case of Clarence Russell v. Helm's Express, Inc.

COUNSEL

Gerald W. Weaver, with him Weaver & Hammer, for appellant.

David J. Armstrong, with him Richard Dunlap, and Dickie, McCamey & Chilcote, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Wright, P. J., would affirm on the opinion of Judge Weir.

Author: PACKEL

[ 221 Pa. Super. Page 293]

Seriously conflicting versions of an accident led to undignified wrangling between attorneys during the trial of this case, which may well have been the cause of an improper charge to the jury. A verdict was returned for the defendant. The plaintiff seeks a new trial.

The plaintiff contends that defense counsel's cross-examination of certain witnesses exceeded the bounds of fair advocacy, that the trial court displayed a serious lack of impartiality and that the charge to the

[ 221 Pa. Super. Page 294]

    jury contained a fundamental error. The record, regrettably, reflects constant bickering between counsel for both sides and particularly bitter exchanges be tween defense counsel and an attorney-witness for the plaintiff.*fn1 Conceivably this unseemly conduct alone may have prevented a fair result, but it is not necessary to decide the case upon that basis.

The record does not support plaintiff's claim that the trial court lacked impartiality. The only serious question involves the plaintiff's specific exception to the judge's charge that if the jury believed the defendant truck driver's version of the accident that was "the end of the case."

The plaintiff testified that while walking on the sidewalk he suddenly noticed alarmed expressions on the faces of some people coming toward him and that as he turned around he was struck in the head by an extended rear view mirror which was on the left side of the defendant's truck. He did not know whether the body of the truck was in the street or on the sidewalk at the moment of contact. An attorney-witness to the accident, however, testified that part of the truck was on the sidewalk and that he saw its front and rear left wheels come down off the sidewalk. Contrariwise, the driver testified that the truck was never

[ 221 Pa. Super. Page 295]

    on the sidewalk. His version appears to be corroborated by photographs of the scene showing ...


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