39 A.2d 626 | Pa. | 1944
This is an action in trespass by Walter Harrison Lane, appellee, against Jerome L. Samuels and Joseph Samuels, appellants, to recover damages for injuries sustained when appellee was struck by a truck, owned by Joseph Samuels and driven by Jerome Samuels, as *448 he was walking across a street intersection. This appeal is from the refusal of the court below to grant appellants' motions for judgment non obstante veredicto and for a new trial.
On February 23, 1942, about 5:00 p.m., Walter H. Lane, appellee, was walking north along Federal Street in the City of Pittsburgh. He stopped in front of a restaurant several doors from the intersection of Federal and Lacock Streets and conversed with a friend. He then continued to the regular pedestrian crosswalk and started to cross with the traffic light in his favor. He had gone only six feet from the curb when, for the first time, he saw the Samuels' truck turn right into East Lacock Street from Federal Street. Immediately thereafter he was struck by appellant's truck, the front right wheel crushing his upper thigh and pelvic region. No warning had been sounded by the approaching truck, and Jerome Samuels, the driver, testified that he had seen no one at the crosswalk.
The testimony on behalf of appellants tended to establish that appellee was intoxicated and that he did not enter the intersection at the crosswalk but stepped out from between two parked cars and walked into appellant's truck. A portion of the hospital record of the Allegheny General Hospital was offered for the purpose of establishing intoxication. This offer was refused. The case was tried before a jury which returned a verdict of $5,500 in favor of appellee.
Appellants' principal contentions are (1) there was insufficient evidence to permit a finding of negligence on the part of the appellant driver, (2) appellee was guilty of contributory negligence as a matter of law in failing to look to his left as he crossed the street, and (3) the failure to permit introduction of the hospital record constituted reversible error.
"It is the duty of the driver of . . . a motor vehicle at all times to have his car under control, and having *449
one's car under control means having it under such control that it can be stopped before doing injury to any person in any situation that is reasonably likely to arise under the circumstances": Galliano v. East Penn Electric Co.,
Appellee's testimony does not establish a complete failure to observe traffic conditions. He did glance to his left as he crossed although his main interest was centered upon a car proceeding improperly on a one-way street. He was at a place upon the highway where he had a right to be and "it was the duty of [appellant] driver, in making the turn from one street into the other, to be observant, and act with the due caution such circumstances made requisite": Rosenthal v. PhiladelphiaPhonograph Co.,
That portion of the record of the Allegheny General hospital which was offered by appellant for the purpose of establishing intoxication was as follows: "Impressions 1. Fractured pelvis. 2. Acute and chronic alcoholic intoxication. 3. Surgical shock." The court below properly held that this was not admissible for the reason that it was opinion evidence, and the probative elements required were not present. In Paxos v.Jarka,
Due consideration has been given to the reference to the word "insurance." We are of opinion that under the circumstances of the case the trial court did not abuse its discretion by its refusal to withdraw a juror and that such refusal was not reversible error. It is significant to note that counsel for appellants interposed no plea for withdrawal of a juror until after the trial judge of his own volition called his attention to the fact that the statement had been made.
Judgment affirmed.