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ORPHA B. WHITMAN v. KENNETH A. RIDDELL (01/20/84)

filed: January 20, 1984.

ORPHA B. WHITMAN, EXECUTRIX OF THE ESTATE OF FRANK R. WHITMAN, DECEASED, ORPHA B. WHITMAN, INDIVIDUALLY,
v.
KENNETH A. RIDDELL, ROBERT A. BOINSKE, DOROTHY ELLEN BOINSKE, AND THE CITY OF SCRANTON. APPEAL OF THE CITY OF SCRANTON



No. 2752 Philadelphia 1982, Appeal from the Judgment of the Court of Common Pleas of Lackawanna County, Civil Division, at No. 983 September Term, 1978.

COUNSEL

Perry J. Shertz, Wilkes-Barre, for appellant.

Arthur L. Piccone, Scranton, for appellees.

Spaeth, President Judge, and Popovich and Hoffman, JJ.

Author: Hoffman

[ 324 Pa. Super. Page 180]

Appellant contends that the lower court committed reversible error in allowing appellee to admit (1) evidence of 36 accidents and (2) correspondence between appellant and the Pennsylvania Department of Transportation. We agree that admitting evidence of the accidents was prejudicial error and, accordingly, reverse and remand for a new trial. We find no merit, however, in appellant's remaining contention.

This personal injury action arose from a June 6, 1978 accident in which the automobile driven by appellee's decedent collided with another automobile at the intersection of South Main Avenue and Washburn Street in Scranton. It is undisputed that the intersection's overhead traffic signal turned green in two directions at one time. Appellee brought suit individually and as executrix of decedent's estate against the driver and owners of the other car and against appellant, the City of Scranton. A jury trial resulted in a verdict solely against appellant. Post-verdict motions for a new trial were denied, prompting this appeal.

Appellant contends first that evidence of thirty-five prior accidents occurring at the same intersection was erroneously admitted.*fn1 "To constitute reversible error, a ruling on evidence . . . must be shown not only to have been erroneous, but harmful to the party complaining." Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965). See also Warren v. Mosites Construction Co., 253 Pa. Superior Ct. 395, 403-04, 385 A.2d 397, 401 (1978). Thus, appellant must demonstrate first, that it was error to admit the allegedly irrelevant evidence and, second, that it was prejudiced by the admission of the evidence. We agree that the evidence was irrelevant and prejudicial. In certain circumstances "evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances may, in the sound discretion of the trial Judge, be admissible to prove constructive notice of a

[ 324 Pa. Super. Page 181]

    defective or dangerous condition and the likelihood of injury." Stormer v. Alberts Construction Co., 401 Pa. 461, 466, 165 A.2d 87, 89 (1960) (emphasis in original). Such evidence will be permitted "for the purpose of establishing the character of the place where [the accidents] occurred, their cause, and the imputation of notice, constructive at least, to the proprietors of the establishment, of the defect and the likelihood of injury." Yoffee v. Pennsylvania Power and Light Co., 385 Pa. 520, 542, 123 A.2d 636, 648-49 (1956), quoting Ringelheim v. Fidelity Trust Co., 330 Pa. 69, 71, 198 A. 628, 629 (1938). This limited exception, permitting the introduction of evidence of similar accidents, is tempered by judicial concern that the evidence may raise collateral issues, confusing both the real issue and the jury. Stormer v. Alberts Construction Co., supra 401 Pa. at 466, 165 A.2d at 89.

Here, appellee was permitted on direct examination, over appellant's objection, to introduce evidence of 36 motor vehicle accidents occurring at the intersection in question from 1965 through 1978. The evidence was limited by the lower court to the "plaintiff's claim that the City had notice that accidents had occurred at the intersection in question in this case." (N.T. at 576). On cross-examination, appellant was permitted to inquire as to the causes of 27 of the 36 noted accidents.*fn2 Appellee claims that the introduction of the number of accidents was necessary to demonstrate that the City should have been generally aware of the dangerous nature of the South Main and Washburn intersection. Appellee's theory of negligence, however, was that the lack of maintenance of the malfunctioning traffic signal could foreseeably result in accidents. Other accidents occurring at the same intersection from different causes do not necessarily

[ 324 Pa. Super. Page 182]

    constitute "similar accidents occurring . . . under the same or similar circumstances . . . ." Stormer v. Alberts Construction Co., supra, 401 Pa. at 466, 165 A.2d at 89. In Ferreira v. Wilson Borough, 344 Pa. 567, 26 A.2d 342 (1942), the plaintiff was injured when the car in which she was riding was "jolted" as it crossed over a combination cross-walk/drain in the street. The court noted that "[t]he fact that an automobile was jolted in crossing a certain place in the street indicates little or nothing as to the condition of the street at that point until all the ...


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