No. 2491 October Term, 1977, Appeal from the Order and Judgment in the Court of Common Pleas of Luzerne County, Civil Action -- Law, No. 194 of 1973.
James S. Palermo, Hazleton, for appellants.
John J. Aponick, Jr., Wilkes-Barre, submitted a brief on behalf of appellee Reichert.
Joseph J. Heston, Wilkes-Barre, for appellee Palmer.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring statement. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 267 Pa. Super. Page 248]
This appeal arises out of an automobile accident occurring on January 16, 1971, in the City of Hazleton, Luzerne County. On that date, appellant Dolores Cusatis was operating her automobile in a southerly direction on James Street. James Street intersects Diamond Avenue at a right angle; the intersection being controlled by a flashing amber light on Diamond Avenue and a flashing red light on James Street. Appellant testified that she stopped at the red light and edged out into the intersection until her vehicle was struck violently in the left side by another car. The second vehicle was travelling west on Diamond Avenue and was driven by appellee James N. Reichert, who was accompanied
[ 267 Pa. Super. Page 249]
by the vehicle's owner, appellee William Palmer, Jr. Reichert testified that appellant's vehicle failed to stop before entering the intersection. The impact carried both automobiles some 100 feet west of the impact point.
Appellants instituted the present action against appellees and the matter was tried before a jury on September 23 and 24, 1976. A verdict was returned in favor of appellees, and a subsequent motion for a new trial was denied by the court en banc. For the reasons stated herein, we reverse the order and judgment of the court below and remand for a new trial.
The sole question presented on appeal is whether the court below erred in excluding evidence tending to show the intoxicated condition of appellee Reichert. At the commencement of trial, testimony was presented outside the hearing of the jury relative to Reichert's alleged intoxicated state at the time of the accident. Appellants presented five witnesses during the hearing. Hazleton City Police Officer Eugene Riley, the first officer at the scene of the accident, testified that Reichert's gait at the time of the incident was "rather poor and there was an odor of alcohol about him." Pennsylvania State Trooper Lawrence Cordisco testified that approximately one hour following the incident, he performed a breathalyzer test on Reichert which showed a blood alcohol content of .14. City Magistrate Joseph Marsit testified that Reichert pleaded guilty to a charge of reckless driving. Finally, both Reichert and Palmer admitted that they had been drinking during the evening. Specifically, they both consumed approximately three-quarters of a quart of Boone's Farm Apple Wine between 7:30 p. m. and the time of the accident. Additionally, at some time between 10:30 and 11:30 p. m., they had two bottles of beer apiece at a local tavern. At the conclusion of this hearing, the trial judge ruled that any testimony on the question of Reichert's intoxication must be excluded. We disagree.
Since Critzer v. Donovan, 289 Pa. 381, 137 A. 665 (1927), it has been the policy of the appellate courts of this Commonwealth that when ...