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KAUFFMAN v. CARLISLE CEMENT PRODUCTS CO. (04/03/74)

decided: April 3, 1974.

KAUFFMAN, APPELLANT,
v.
CARLISLE CEMENT PRODUCTS CO., INC. ET AL.



Appeal from order of Court of Common Pleas of Cumberland County, Feb. T., 1973, No. 85, in case of Michelle E. Kauffman, a minor by her mother and lawful guardian, Beverly L. Kauffman v. Carlisle Cement Products Co., Inc. and Lawrence L. Troup, Administrator of the Estate of Thelma Mae Troup, Deceased.

COUNSEL

John J. Krafsig, Jr., for appellant.

George F. Douglas, Jr., for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J. Watkins, P. J., dissents.

Author: Cercone

[ 227 Pa. Super. Page 321]

This is an appeal by plaintiff from the lower court's granting of defendant's motion for a directed verdict in a trespass action.

Minor plaintiff, Michelle E. Kauffman, was a rear seat passenger in an automobile operated by Thelma Troup, who was killed in a collision between her automobile and the truck of the defendant, Carlisle Cement Products Co., Inc., which at the time of the accident was driven by an employee of the company, Clyde Myers. Thelma Troup's husband, Lawrence L. Troup, is the administrator of the estate of his deceased wife and was made the additional defendant in this case.*fn1

The accident occurred at Intersection of Routes 944 and 34 in Cumberland County. Thelma Troup, the deceased driver was travelling westward on Route 944

[ 227 Pa. Super. Page 322]

    intending to turn south at the intersection onto Route 34. Her line of travel was controlled by a stop sign at the intersection. Just prior to the accident the truck of the defendant, Carlisle Cement Products Co., Inc., was being driven northward on Route 34 which was a through highway. At trial, the driver of the truck, Clyde Myers, was called by plaintiff's counsel as for cross-examination. Defense counsel objected to this witness being called as for cross-examination and the court upheld the objection since in the court's opinion he was a mere employee of the owner of the truck, was not a party, and therefore had no pecuniary interest, direct or otherwise, in the outcome of the case. The court was correct in this ruling. Act of May 23, 1887, P. L. 158, § 7, as amended, 28 P.S. 381; Suckling v. Penn. Threshermen and Farmers' Mutual Casualty Insurance Company, 426 Pa. 503, 507 (1967); Wilf v. Philadelphia Modeling and Charm School, Inc., 205 Pa. Superior Ct. 196, 201 (1965); Stewart v. Supplee-Wills-Jones Milk Company, 180 Pa. Superior Ct. 583, 586 (1956). Plaintiff's reliance on the case of Hodge v. Me-Bee Co., Inc., 429 Pa. 585, 591, 592 (1968) is not apropos. In that case the person called for cross-examination was the treasurer of the defendant company and as "officer of a corporation" he was specifically covered under the Act of 1887, supra, as one who could be called upon for cross-examination.

The more serious question surrounds the testimony of the minor plaintiff, Michelle K. Kauffman, who was a 10-year old fourth grader at the time of trial and 9 years old at the time of the accident. She testified that the Troup car in which she was a passenger had stopped at the stop sign and then pulled out into the intersection. She stated that as the Troup car entered the intersection she looked to her left and saw defendant's truck 40 to 50 feet away and a few seconds

[ 227 Pa. Super. Page 323]

    later the impact occurred. She stated that the driver of her car, Thelma Troup, deceased, once she had pulled out from her stopped position, proceeded past the stop sign and had traveled onto Route 34 when the collision occurred and that when the truck and the automobile collided, the truck's front wheels went over the roof of the Troup car. The collision caused minor plaintiff to be thrown out of the car as the result of which she sustained serious injuries. Plaintiff's counsel attempted to elicit from Michelle a statement as to the speed at which defendant's truck was moving immediately prior to the accident. This attempt was objected to by defendant's counsel on the grounds that the minor plaintiff was not qualified to estimate speed. The objection was sustained on the following colloquy in the record in the direct examination of the minor plaintiff: "Q. What did Thelma Troup do then? A. Pulled out. Q. Now, did she go very fast? A. No. Mr. Douglas: I object to any testimony of speed from this little lady. The Court: Yes, I think maybe her qualifications to judge speed might be a little . . . Mr. Krafsig: I didn't ask what speed -- The Court: You asked did she move out very fast? Mr. Krafsig: No, Your Honor. Could we have the reporter read back what was said? (Previous two questions and answers read.) Mr. Douglas: I asked that the answer be stricken as the question was improper for a witness of this age. The Court: The jury will be instructed to ...


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