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CAROL ANN LEWIS v. MARION H. MELLOR (10/27/78)

decided: October 27, 1978.

CAROL ANN LEWIS, APPELLANT (AT NO. 1021),
v.
MARION H. MELLOR, APPELLANT (AT NO. 1293), AND JACQUELYN L. MCCALLA



No. 1021 October Term 1977, No. 1293 October Term 1977, Appeal from the Judgment of the Court of Common Pleas of Montgomery County, Civil Action-Law, No. 69-380.

COUNSEL

M. A. Bernstein, Philadelphia, with him Michael Shekmar, Philadelphia, for appellant at No. 1021, and appellee, Lewis, at No. 1293.

No appearance entered nor brief submitted for appellant at No. 1293, and appellee, Mellor, at No. 1021.

T. J. Mullaney, Norristown, with him Hugh O'Neill, Norristown, for appellee, McCalla.

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

Author: Spaeth

[ 259 Pa. Super. Page 513]

This is an appeal from a judgment entered upon a jury verdict in an automobile accident case.

The accident occurred on January 27, 1967, at about 12:30 p. m., on Route 309 near the Norristown ramp. The highway was four lanes wide; each lane was 12 feet wide; the two northbound lanes were divided from the two southbound lanes by a concrete medial barrier. The road surface was wet; it was windy and raining. Jacquelyn McCalla was driving her automobile in the outside northbound lane; Carol Ann Lewis occupied the right front seat. Marion Mellor was driving her automobile in the outside southbound lane; it went out of control and crossed the medial barrier over onto the northbound traffic lanes, where it was struck one to two seconds later by Miss McCalla's automobile. As a result of this collision Miss Lewis suffered severe injuries, including brain damage.

Miss Lewis brought suit in trespass against both Miss McCalla and Mrs. Mellor. The jury found that Miss McCalla had not been negligent, but that Mrs. Mellor had been, and as to her, awarded Miss Lewis $350,000 in damages. Miss Lewis filed a motion for a new trial against Miss McCalla. The lower court denied the motion and this appeal resulted.*fn1

As appellant, Miss Lewis argues that the trial judge erred: (1) in excluding certain testimony concerning the distance between the McCalla and Mellor automobiles; (2) in admitting opinion evidence regarding Miss McCalla's ability to avoid the Mellor automobile; (3) in refusing a requested point for charge, which undertook to define Miss McCalla's duty to avoid the Mellor automobile; and (4) in instructing the jury on the doctrine of sudden emergency.

[ 259 Pa. Super. Page 514]

-- 1 --

In this portion of her argument, appellant assigns as error two rulings by the trial judge. First: The trial judge excluded appellant's deposition testimony that when she shouted a warning to Miss McCalla, the distance between the McCalla and Mellor vehicles was "[f]rom about the front porch out there to Nell's house on the corner." Excluded with this testimony were two measurements of the distance between the front porch and Nell's house, made after the deposition, one by appellant's counsel and the other by her father. These measurements were 270 feet and 355 feet respectively.*fn2 Second: On direct examination Mrs. Mellor testified that when she began to cross the medial barrier, the distance between her automobile and Miss McCalla's was about "two city blocks." Appellant's counsel then proceeded to question Mrs. Mellor as follows:

BY MR. SHEKMAR:

Q. Can you tell us, when you referred to city blocks, where you refer to as city blocks? What city blocks are you referring to? You said city blocks. Now where are they? Take your time now.

A. If I were looking out here in Norristown, for instance, if I stood at the corner and looked down, it would be two blocks.

Q. Which corner would you stand on, Mrs. Mellor? We are in the courtroom now. Which corner would you stand on? Can you describe that better to us? Which corner would you stand on?

MR. BROWN: I object, Your Honor. Again its the same problem.

THE COURT: Objection sustained. She can estimate the distance; but city blocks are like the length of your nose; they vary.

MR. SHEKMAR:

[ 259 Pa. Super. Page 515]

Q. Well, can you give us some estimates in feet?

A. It was just -- they were far away, but I could see the ...


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