Appeal 262 | Pa. Super. Ct. | Apr 25, 1934
Argued April 25, 1934. The plaintiffs, husband and wife, were riding as guests in an automobile owned and driven by defendant when an accident occurred and the plantiff wife was injured. At the close of plaintiffs' case a compulsory nonsuit was granted which the court subsequently refused to remove.
There are but two questions involved, and we are all of the opinion that both should be answered in favor of the appellant. Did the plaintiffs make out a case which entitled them to go to a jury? Did the *570 court err in striking from the record certain evidence given by the plaintiffs?
A compulsory nonsuit having been granted, the evidence must be considered in a light most favorable to the plaintiffs and all reasonable inferences of fact drawn in their favor. We will so review the evidence. The driver of the automobile was proceeding north a short distance beyond Williamsport in this State on a macadam road at a speed of about twenty-five miles per hour. The driver came up behind another car that was moving at the rate of twenty miles per hour when he attempted to pass. In so doing, he attained a speed of thirty-five or forty miles per hour and came abreast of the other car when he saw a car coming in the opposite direction about two hundred feet away. The road was just wide enough to accommodate two lanes of traffic, one in each direction. The day was misty, it was raining at the time, the road was "very wet" and "very oily," and the defendant's car was going down hill. On seeing the approaching car, the driver attempted to resume his place at the rear of the car he was passing and in so doing "jammed" his brakes. The back wheel went off the road, the car skidded, turned around, and came in violent contact with a culvert. The plaintiff husband testified with reference to the application of the brakes that the driver made "a hard application," he "jammed the brakes," "he put all his force on them." When the car turned, the plaintiff wife, who was riding in a rumble seat, was thrown into the bushes a distance of ten feet from the road, and the wife of the driver was thrown out on the pavement.
We are not unmindful of the facts that no presumption of negligence arises from the mere happening of an accident, that a swerve or a skid may occur without negligence on the part of the driver of a car, and that it is incumbent on the plaintiffs to prove that the *571
skidding resulted from the negligent act or acts of the defendant: Bernstein v. Smith,
The plaintiff husband was permitted on direct examination without objection to describe the manner in *572 which the brakes were applied. Then on cross-examination he was interrogated on the same subject by the defendant's counsel. On this subject the witness stated that he had driven the car for seven hours shortly before the accident. He was then asked: "Q. I am asking you how hard he jammed the brakes? A. He put all his force on them. Q. How do you know he put all his force? A. Because the car lurched. Q. He did not use the hand-brake? A. No, sir, but the Essex foot-brake or any car you put the brakes on, they take hold right away. Q. Are you an expert on Essex cars? A. I have driven many cars. Q. You never worked on them? A. Well, my sister has an Essex, and I drive it. Q. Therefore, you know exactly what results when brakes are put on, on an Essex car? A. Yes, sir. Q. Do you claim to be an expert along that line? A. No, sir."
On the strength of the statement that he did not claim to be an expert on brakes, the court granted a motion of the defendant to strike from the record all reference to improper applying of brakes. This was clear error. In any event, the order was too broad. The witness had testified on the subject in chief without objection. The answers made on cross-examination were responsive to questions asked by counsel for the defendant. It will be noted that he did not testify that the only reason he knew the driver "put all his force" on the brakes was because the car lurched. Again, it does not require any unusual experience to know that if one driving on an oily, wet pavement suddenly deflects a car moving at thirty-five or forty miles an hour and applies his brakes with great force so that they are jammed, he will skid, for common experience shows that such result is almost certain to follow. It was also a fact for the jury to consider that the skidding was coincident with the application of the brakes. It was for the jury to determine just what *573 the witness meant when he said he was not an expert. The experience that he detailed did show qualification to answer. As is pointed out by Professor Wigmore (1 Wigmore on Evidence 555), experiential capacity is always relevant to the matter in hand. "The witness may, from question to question, enter or leave the class of persons fitted to answer, and the distinction depends on the kind of subject primarily, not on the kind of person. It is thus, a mistake to think of experiential qualifications as sharply marked off into defined classes." The witness had shown not only his experience in such matters which entitled him to describe the operation of brakes and the results that followed, but he was dealing with a subject which is common knowledge to all persons who have had a reasonable amount of experience in driving cars. The order striking out the testimony should not have been made.
The judgment of the lower court is reversed and a venire facias de novo awarded.