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TAYLOR ET AL. v. FARDINK (12/11/74)

decided: December 11, 1974.

TAYLOR ET AL., APPELLANTS,
v.
FARDINK



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 71-5349, in case of David W. Taylor, a Minor, by his Parent, and Natural Guardian, John Taylor and John Taylor, in his own right v. Donna L. Short Fardink.

COUNSEL

Fred J. Silverman, with him Bernard L. Kubert, for appellants.

William H. Pugh, IV, with him Bean, DeAngelis, Kaufman & Kane, for appellee.

Watkins, P. J., Hoffman, Cercone, Van der Voort, and Spaeth, JJ. (Jacobs and Price, JJ., absent). Opinion by Hoffman, J. Jacobs and Price, JJ., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 231 Pa. Super. Page 261]

The sole meritorious question raised by this appeal is whether reversible error was committed by permitting an eyewitness to testify in the manner of a conclusion as to appellee's negligence.

The subject of the instant suit arose from an accident involving the appellee, Donna L. Short Fardink, and minor appellant, a nine-year-old pedestrian. On Wednesday, October 28, 1970, at or about 2:20 p.m. on Terwood Road in Upper Moreland Township, Montgomery County, appellee's vehicle struck and seriously injured minor appellant. Suit was commenced on May 5, 1971, by minor appellant's father, John Taylor, suing both in behalf of minor appellant and in his own right. A trial was held before a jury on December 13 and 14, 1972, and a verdict was returned in favor of the defendant-appellee. From the denial of post-trial motions, this appeal followed.

At trial, appellee called Thomas W. Huston, a 19-year-old neighbor of appellants, the only eyewitness to

[ 231 Pa. Super. Page 262]

    the accident not a party to the case. Over appellants' strenuous objections, the trial judge allowed appellee to ask the witness the following question on direct examination: "Is there anything in your opinion that this driver could have done to avoid this accident?" to which the witness replied, "Well, she applied her brakes and swerved. I didn't see what else she could have done." (Emphasis supplied).

It has long been the rule in Pennsylvania that where mere descriptive language is inadequate to convey to the jury the precise facts of a case or their bearing on the issues of the case, a witness may supplement his descriptions by his opinions; but when the circumstances are such that they can be fully and accurately described to the jury, and persons without special knowledge and training are capable of estimating their bearing on the issues, opinions of witnesses, whether expert or otherwise, are inadmissible. Della Porta v. Pennsylvania R.R. Co., 370 Pa. 593, 88 A.2d 911 (1952); McKim v. Philadelphia, 217 Pa. 243, 66 A. 340 (1907); Graham v. Pennsylvania Co., 139 Pa. 149, 21 A. 151 (1891); Strausser v. Strunk, 222 Pa. Superior Ct. 537, 295 A.2d 168 (1972) (Hoffman, J., concurring in a per curiam affirmance without opinion). This policy makes no distinction between witnesses or parties, adverse or otherwise. Starner v. Wirth, 440 Pa. 177, 269 A.2d 674 (1970). It is also well settled that the admission of incompetent opinion evidence which goes to the legal conclusions to be drawn by the factfinder constitutes reversible error. Collins v. Zediker, 421 Pa. 52, 218 A.2d 776 (1966); Brodie v. Phila. Trans. Co., 415 Pa. 296, 203 A.2d 657 (1964). In Brodie, the Supreme Court found the incompetent opinion evidence to be "grossly speculative and an invasion of the jury's exclusive prerogative." 415 Pa. at 299, 203 A.2d at 658. The Court found that the improper opinion evidence "tainted the verdict in all actions and could well have

[ 231 Pa. Super. Page 263]

    been the basic factor influencing the jury's determination of the liability question. It was sufficiently ...


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