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FREDERICK REED AND ROXANNE M. REED v. RUTH ANN HUTCHINSON (07/06/84)

filed: July 6, 1984.

FREDERICK REED AND ROXANNE M. REED, APPELLANTS
v.
RUTH ANN HUTCHINSON



No. 2371 Philadelphia 1982, Appeal from the Judgment of the Court of Common Pleas, Chester County, Civil, at No. 146, January 1978.

COUNSEL

Edward Blumstein, Philadelphia, for appellants.

C. Richard Morton, West Chester, for appellee.

Wickersham, Montgomery and Montemuro.

Author: Montemuro

[ 331 Pa. Super. Page 405]

Appellants, Frederick Reed and his wife, Roxanne Reed, commenced this action in trespass to recover for injuries sustained in an accident which occurred on September 16, 1976, when a pick-up truck driven by appellee Hutchinson left the road and hit a guardrail. Appellant, Roxanne Reed,

[ 331 Pa. Super. Page 406]

    was a passenger in the truck at the time of the accident. At the completion of trial on November 17, 1980. The jury rendered its verdict in favor of defendant-appellee Hutchinson. Appellants' motions for a new trial and for judgment n.o.v. were denied by the court below. Judgment was entered on July 23, 1982 and this appeal followed.

At approximately 2:20 PM, on the afternoon of September 16, 1976, appellee was driving down Paoli Pike toward West Chester, when, near the Pike's intersection with Route 352, her pick-up truck veered off the road and hit a guardrail. After the accident, the right front wheel of appellee's vehicle was discovered on the right side of the road some twenty-five feet to the rear of the vehicle. At trial, plaintiff-appellants attempted to prove that appellee driver lost control of her vehicle due to inattentiveness and drove off the road into a guardrail, which thus caused the vehicle to lose its right front wheel. Appellee's position was that the vehicle lost its right front wheel for unexplained reasons, which loss then caused the vehicle to leave the road and hit the guardrail.

On appeal, appellants raise four issues, three of which relate to the testimony of the investigating officer, Trooper Williams, and can essentially be stated as one question -- did the trial court err in permitting opinion testimony by Trooper Williams?

Trooper Williams was not an eyewitness to the accident, but instead arrived on the scene two to three minutes later. At trial, Trooper Williams was called as a witness on behalf of appellants. It was established, inter alia, on direct examination that the officer had observed cut marks on the road at the scene of the accident. The following exchange then occurred on cross-examination:

Q. Let me ask you this, sir. Did the cut marks that you saw appear to have been made by what was left after the wheel came off?

MR. BLUMSTEIN: Objection, Your Honor.

THE COURT: State your grounds.

[ 331 Pa. Super. Page 407]

MR. BLUMSTEIN: If the Officer doesn't know how the wheel came off, and if the Officer didn't see the cut marks made, I don't know how he can state what made the cut marks.

THE COURT: What is the basis of your objection, the precise basis of your objection?

MR. BLUMSTEIN: The basis of my objection is there's been no foundation laid for the officer to make this statement. He's calling for an opinion of the officer for facts not observed.

THE COURT: Is the basis that there's been no foundation laid?

MR. BLUMSTEIN: That's number 1. Number 2, he's calling for the opinion of the officer.

THE COURT: And, sir, as to the foundation which you deem deficient, do you deem it factually deficient or deficient as to this gentleman's experience in expertise?

MR. BLUMSTEIN: Both, Your Honor.

THE COURT: And with respect to the opinion, the alleged impropriety to his testifying to an opinion, do you have any particular basis of that, sir, that you object to? Do you object to the police officers giving opinions as to the cause of an accident in general, ...


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