Appeal from judgment of Court of Common Pleas of Monroe County, Dec. T., 1967, No. 28, in case of Paul Strausser, administrator of the estate of Ricky Lee Strausser, deceased v. Louis Charles Strunk.
Phillip P. Santucci, with him Mervine, Brown, Newman & Santucci, for appellant.
Phillip H. Williams, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Concurring Opinion by Hoffman, J. Spaulding, J., joins in this concurring opinion. Dissenting Opinion by Packel, J. Cercone, J., joins in this dissent.
[ 222 Pa. Super. Page 538]
Concurring Opinion by Hoffman, J.:
This appeal involves the question of whether the trial judge erred in sustaining appellee's objection to a question asked appellee on cross-examination for reason that it called for a conclusion by a witness.
On December 22, 1966, at or about 5:15 p.m. on King Street in East Stroudsburg, plaintiff's decedent, Ricky Lee Strausser, age 2 years and 10 months, was struck and killed by an automobile driven by the appellee, Louis Charles Strunk. Suit was commenced by decedent's personal representative on December 15, 1967. A trial was held before a jury on February 17, 1971, and a verdict was returned in favor of the defendant-appellee. Testimony during the trial disclosed that on the evening in question the weather was clear and the sky was dark. There was snow on the ground from a previous snowstorm, and snowbanks were present on each side of King Street, particularly in front of the Strausser residence facing the street. The testimony at trial established that just before the accident the decedent had been playing in front of the house in the vicinity of the snowbanks. Appellee testified that he was driving his motor vehicle with his lights on low beam, and that he did not see the child before, during or after the impact, which occurred at the right front fender of appellee's car. Decedent was unattended at the time of the accident, and there were no witnesses to the accident.
[ 222 Pa. Super. Page 539]
On direct examination, appellee admitted hitting the child. The following excerpted portion of the cross-examination illustrates the conditions and circumstances leading up to the accident: "Q. [Plaintiff's counsel]: At what speed were you traveling? A. About 35 miles an hour. . . . Q. At the time you were operating your automobile on King Street, was it dark or getting dark? A. It was dark. . . . Q. The skies were cloudy? Is that a fair statement? A. I believe they were. Q. Can you describe the roadway? A. It had snow on it, snow patches and ice patches on the shoulder of the road. Q. What about the roadway itself, the travel portion? A. It was straight. Q. Was there anything on it? A. No, mostly clear. Q. It was mostly clear? A. Yes. . . . Q. You had your lights on? A. Yes. Q. Were they working properly? A. Yes, they were. Q. Is it true to say that King Street is a straight road, essentially, from about where Race Street intersects it? A. Yes. . . . Q. In that vicinity, headed toward Stokes Avenue, or to the right of the map as you look at it, would it be fair to say the road is straight and level? A. Yes, it would. . . . Q. Now in the same vicinity, Louis, there were no obstructions to your view or line of sight as you were traveling toward Stokes Avenue, is that correct? A. Yes. Q. Your car was in good working order? A. Yes, it was." Having developed all the facts necessary for the jury to ascertain the conditions under and the manner in which appellee was driving, plaintiff's counsel then posed ...