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KATHRYN WARREN AND LUCILLE S. WARREN v. MOSITES CONSTRUCTION COMPANY (04/13/78)

decided: April 13, 1978.

KATHRYN WARREN AND LUCILLE S. WARREN, APPELLANTS,
v.
MOSITES CONSTRUCTION COMPANY



COUNSEL

James L. Jubelirer, State College, for appellants.

Richard L. Campbell and Miller, Kistler, Campbell, Mitinger & Beik, State College, submitted a brief for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result. Price, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 253 Pa. Super. Page 399]

On the evening of November 15, 1972, a small sports car driven by Miss Kathryn Warren, appellant, collided with a truck operated by Mr. Melvin Frank at the intersection of Atherton Street and College Avenue in State College, Pennsylvania. At the time of the accident, Mr. Frank was traveling northward on Atherton Street; Miss Warren was attempting to make a left-hand turn from College Avenue onto Atherton when her car was struck on the left side by Mr. Frank's vehicle. The door on the driver's side of Miss Warren's car was hit and the glass in the window shattered, cutting Miss Warren's eyelid as well as the general area surrounding her eye.

Near the intersection, Mosites Construction Company, the defendant-appellee, was performing repair work under a public contract. On the construction site were four mounds of topsoil, approximately three to three and one-half feet in

[ 253 Pa. Super. Page 400]

    height standing on the left-hand side of College Avenue, adjacent to the roadway. Miss Warren alleged that the mounds of dirt obstructed her view of northbound traffic approaching the intersection, though there was some testimony from another witness to the effect that the rooftops and headlights of approaching vehicles could be seen even from a small car such as Miss Warren's.

Miss Warren and her mother, Mrs. Lucille S. Warren, owner of the vehicle involved in the accident, filed suit against Mosites Construction Company. Miss Warren sued for personal injuries and her mother sought recovery for damages to her automobile. Mosites Construction Company (Mosites) joined Mr. Frank, the driver of the other car, as an additional defendant, and Mr. Frank in turn joined Miss Warren as a second additional defendant as to Mrs. Warren's claim for property damage.

At trial, Mr. Terry Perryman, Mosites' job foreman, was allowed by the trial court, over objection, to testify that a state inspector saw the mounds of earth and was satisfied with the work. Mr. Perryman further testified, over objection, that the warning device set up by Mosites satisfied the Pennsylvania Department of Transportation regulations as found in the "blue book."

After Mr. Perryman's testimony was completed, counsel for Mr. Frank, the driver of the other car, moved for a compulsory non-suit in his client's behalf because there was no evidence of negligence on Mr. Frank's part. This motion was granted. Miss Kathryn Warren was also released as second additional defendant since she was only made a defendant to indemnify Mr. Frank. Mosites Construction Company then moved to re-open its case to call Mr. Frank as an additional witness on the issue of its liability. The motion was granted over objection. Subsequently, the jury returned a verdict against Mosites in favor of Mrs. Lucille Warren for $596.00, the fair market value of her car immediately before the accident. However, the jury did not find in favor of Miss Kathryn Warren and did not award her damages. Both Mrs. Warren and Miss Warren appeal from this verdict.

[ 253 Pa. Super. Page 401]

There are three points of error raised by appellants in this appeal: the trial court erred by 1) allowing the appellee Mosites to re-open its case; 2) admitting certain testimony of Mosites' witness over objection that the testimony violated the "best evidence" rule; and 3) permitting Mosites' witness to relate ...


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