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MICHAEL RADOGNA v. DAVID HESTER AND HAROLD W. COSPER (07/12/78)

decided: July 12, 1978.

MICHAEL RADOGNA, APPELLANT,
v.
DAVID HESTER AND HAROLD W. COSPER, APPELLEES



No. 3 October Term, 1977, Appeal from Order of the Court of Common Pleas of Northampton County, Civil Division, at No. 105 January Term, 1975.

COUNSEL

Elwood M. Malos, Easton, with him Malos, Baurkot & Baratta, Easton, for appellant.

J. Stephen Kreglow, Easton, for appellees.

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

Author: Cercone

[ 255 Pa. Super. Page 519]

On February 23, 1973, an automobile driven by Michael Radogna, plaintiff-appellant, collided with a van operated by Harold Cosper and owned by David Hester, both defendants-appellees. The accident occurred on North Third Street in Easton, Pennsylvania; appellant had just turned off "the Circle" and onto North Third Street when Cosper pulled out of his parking space and the two collided. Evidence proved that the speed limit on North Third Street was 25 miles per hour at the time of the accident. A witness for appellees was permitted to testify that he believed that appellant was

[ 255 Pa. Super. Page 520]

    traveling at about 35 to 40 miles per hour. This appeal comes from a jury verdict rendered in favor of defendants-appellees. For the reasons set forth below, we affirm the verdict and judgment.

Appellant's first issue is very specific; appellant argues that it was error for the trial court to allow a witness on behalf of defendants to estimate speed when that witness never testified as to the distance over which the vehicle moved during the period of observation. Appellant's point is not well taken. As a general rule, questions concerning admission or exclusion of evidence are within the sound discretion of the trial court, to be reversed on appeal, only for a clear abuse of discretion. Westerman v. Stout, 232 Pa. Super. 195, 335 A.2d 741 (1975); Cartmel v. Williams, 207 Pa. Super. 144, 215 A.2d 282 (1965); Wolfe v. Pickell, 204 Pa. Super. 541, 205 A.2d 634 (1964); Stack v. Tizer, 204 Pa. Super. 203, 203 A.2d 403 (1964). Appellant does not cite any authority which says that a lay witness who gives an estimate of the speed of a moving vehicle must also specify the distance over which the vehicle traveled during the period of observation. The cases relied on by appellant do not reach such a conclusion. We fail to see, therefore, how the trial court abused its discretion by admitting the estimation.

While the cases appellant cites speak in terms of distance, they do not mandate that distance is an indispensable element of the foundation for lay estimates of speed. On the contrary, the requisite qualifications for admission of non-expert testimony are broadly stated in those cases. In Shaffer v. Torrens, 359 Pa. 187, 58 A.2d 439 (1948), the court stated that the requirements for admissibility of lay witness estimations of speed include (1) an observation of the vehicular movement in question; and (2) a recognition of impressions of like vehicles at relative speeds. Shaffer v. Torrens, 359 Pa. 187, 193, 58 A.2d 439 (1948).*fn1 Other decisions have

[ 255 Pa. Super. Page 521]

    required that the witness have something more than just a "fleeting" glance of the vehicle in question, Early v. New York Central R. R. Co., 333 Pa. 471, 5 A.2d 110 (1939); Anderson v. Penta, 138 Pa. Super. 321, 10 A.2d 898 (1939), the important consideration being that the witness have at least a minimum of time to make a reasonable estimation of speed. Cases which have rejected a witness' observation because the witness did not see the vehicle in motion for more than a few feet before the collision have indicated that the witness' testimony was not admissible because of the brevity, the fleeting nature of the observation.*fn2 However, the court has never attempted to establish any minimum distance requirement for competency of lay witness estimates.

There are other cases in which the distance traveled by the moving vehicle during the period of observation has been appreciable, yet the court has rejected the witness' testimony because the moving vehicle had come directly toward the witness,*fn3 making any estimation of speed speculative. The test for admissibility of lay witness estimations of speed, therefore, is not strictly connected with evidence of the distance traversed by the vehicle in question but, rather, depends upon the existence of an overall opportunity for adequate observation,*fn4 in addition to the witness's prior experience with moving vehicles. Evidence of the distance over which the ...


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