417 Pa. 87 | Pa. | 1965
Lead Opinion
Opinion by
On March 29, 1959, at approximately 11:30 a.m., Gary Anderson (Anderson), owned and was then operating a motor vehicle which was the last vehicle in a funeral procession, consisting of 12 or 13 other vehicles, which was proceeding along West Chester Pike, Chester County, en route to Rolling Green Cemetery. At the cemetery entrance, the lead vehicle in the procession stopped to effect an entry into the cemetery and Anderson’s vehicle stopped. As Anderson’s vehicle stopped it was struck in the rear by a truck. This
Anderson instituted a trespass action in the Court of Common Pleas of Chester County against Ford and Hughes. After a trial before a court and jury, the jury returned a verdict in favor of Ford and Hughes and against Anderson. Anderson filed motions both for a new trial and judgment n.o.v.; the latter was withdrawn and the former was dismissed by the court below. From judgment entered upon the verdict this appeal was taken.
Anderson contends: (1) the evidence so clearly reveals negligence on the part of Ford and Hughes and the lack of negligence on the part of Anderson that Anderson is entitled to a new trial limited to the question of damages; (2) in view of the weight of the evidence, a new trial generally must be granted; (3) the trial court erroneously applied the so-called “Dead Man’s” rule
First, Anderson takes the position that, in view of the evidence, the trial court should have directed a verdict at trial against Hughes and Ford on the ground of liability and, not having done so, a new trial limited to damages must now be granted. In support of his contention, Anderson relies in large part upon the so-called “incontrovertible physical facts” rule.
Anderson’s second contention is without merit. What Anderson urges is that, since the evidence so clearly shows not only that he was free of negligence and that Ford and Hughes were negligent, the verdict’ of the jury was contrary to the weight of such evidence. We do not so read the record.
The third contention is of more serious import. This action was instituted against James Hughes, Jr., James Hughes, Sr. and Donald Hughes, individually and trading as Hughes & Sons. Subsequent to the institution of the action but prior to the trial thereof, James Hughes, Sr. died and his personal representative was substituted of record in his stead. At the trial, the court permitted Anderson to testify against Ford but excluded such testimony as against Hughes on the authority of the so-called “Dead Man’s” rule, supra. When Anderson’s testimony was offered, defense counsel objected to the use of such testimony as
In its opinion, the court below noted: “The record fails to show any disclosure to the court of either the deposition or the interrogatories to and Answers of [Anderson] filed of record. It is also interesting to note that no point for charge on the subject was presented by [Anderson’s] counsel, although he did except to the content of the instructions given the jury consistent with the above ruling as to [Anderson’s] competency as a witness.” In passing on the motion for a new trial, the court below noted that, subsequent to the trial of this action, the Superior Court in Perlis v. Kuhns, 202 Pa. Superior Ct. 80, 195 A. 2d 156, held that, where a party is required to answer pretrial interrogatories, any objection based upon the “Dead Man’s” rule to the competency of such party to testify at the trial is waived even though the answers to the interrogatories were not offered in evidence. In Rosche v. McCoy, 397 Pa. 615, 156 A. 2d 307, we held that a surviving party became competent to testify if the op
To constitute reversible error, a ruling on evidence or an instruction to a jury must be shown not only to have been erroneous but harmful to the party complaining. Did the erroneous exclusion of Anderson’s testimony as against Hughes by the trial court at the time when such testimony was offered and at the time of the court’s instructions to the jury cause harm to the complaining party, Anderson? Ford was the operator of the truck and as to him Anderson was permitted to testify fully and completely and to lay before the jury the factual basis upon which he claimed that Ford was negligent in the operation of the truck. The jury, after hearing such testimony, concluded that Ford was not liable to Anderson. The sole basis upon which Hughes could become liable to Anderson was under the doctrine of respondeat superior, i.e., that negligence on the part of Ford at the time and place of the accident when he was acting as an employee of Hughes and upon the latter’s business was attributable to Hughes. Absent liability on the part of Ford, Hughes would not be liable. If Anderson was contributorily negligent neither Ford nor Hughes would be liable. If Ford was not negligent, then Hughes would not be liable. On both issues Anderson was permitted to testify at will. Under such circumstances, the error of which complaint is now made did not and could not harm Anderson in view of the finding of the jury which might have been predicated either on con
Lastly, Anderson urges that the charge of the court was confusing, incorrect and of such nature as to require the grant of a new trial. We have carefully examined the charge in its entirety with particular reference to those instances wherein Anderson particularly complains on this appeal. Such examination leads us to the conclusion that the charge of the court was proper, that it was fair and it fully and adequately instructed the jury properly on the law applicable to the factual situation presented in the case at bar.
We find no merit in any of Anderson’s contentions and are of the opinion the court below acted with propriety in refusing a new trial.
Judgment affirmed.
Act of May 23, 1887, P. L. 158, §5(e), 28 P.S. §322.
Hall v. Ziegler, 361 Pa. 228, 64 A. 2d 767, Steffenson v. Le-high Valley Transit Co., 361 Pa. 317, 64 A. 2d 785 and MacNeill v. Makos, 366 Pa. 465, 77 A. 2d 378, npon which Anderson relies, are, in this respect, inapposite.
With the exception, of course, of that portion of the charge excluding Anderson’s testimony from consideration by the jury as against Hughes.
Dissenting Opinion
dissents on the ground that the trial charge was incomplete and inadequate, and may therefore have confused the jury by failing to present to it the total factual and legal situation.
