Ferreira v. Borough of Wilson

• Decision Date: 11 May 1942
• Docket Number: 26
• Citation: 26 A.2d 342,344 Pa. 567
• Parties: Ferreira et al., Appellants, v. Wilson Borough
• Court: Pennsylvania Supreme Court

26 A.2d 342

344 Pa. 567

Ferreira et al., Appellants, v. Wilson Borough

No. 26

Supreme Court of Pennsylvania

May 11, 1942

April 14, 1942, Argued

Appeal, No. 26, Jan. T., 1942, from judgment of C.P Northampton Co., June T., 1939, No. 86, in case of Madelina Ferreira et al. v. Borough of Wilson. Judgment affirmed.

Trespass for personal injuries. Before BARTHOLD, J.

Verdict and judgment for defendant. Plaintiffs appealed.

The judgment is affirmed.

Israel Krohn, for appellant.

Wayne E. Barber, for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR JUSTICE MAXEY:

This is an appeal from the refusal of the court below to grant a new trial after the jury rendered a verdict in favor of the defendant, in an action of trespass brought against the Borough of Wilson by Madelina Ferreira and Arthur Ferreira, her husband, to recover damages for injuries sustained by the wife-plaintiff while riding in an automobile on a borough highway and to recover the expenditures made by the husband as a result of those injuries. The negligence charged is failure upon the part of the Borough to exercise due care in the construction and maintenance of a combination foot crossing and drain leading from the north side to the south side of Washington Boulevard on the west side of the latter's intersection with Eighteenth Street in the defendant Borough. The wife-plaintiff was a passenger in the rear seat of a sedan which was driven by one Julius Farinhas westward on the Boulevard. The accident happened on February 12, 1939, in the late afternoon while it was still daylight. The weather was clear and the road was dry. The driver claimed that he was proceeding at a rate of 15 or 20 miles an hour and that as he got on the crossing the car "flopped and jogged" and Mrs. Ferreira screamed. The driver then applied the brakes and stopped the car. Mrs. Ferreira testified that she was thrown upon the floor and severely injured.

The basic issue was whether or not the crossing or drain had been properly or negligently constructed and maintained. The cross-way at this point was both a cross-walk and drain because it served as a passage for pedestrians and at the same time took care of surface water. It was a concrete crossing twelve or thirteen feet in width. The surface of the Boulevard and of Eighteenth Street was bituminous macadam. In order to carry the water, the crossing was concave throughout its length. The testimony of witnesses varied as to its depth. The husband-plaintiff said by actual measurement its depth was ten inches. Farinhas, the driver of the car, testified that his estimate of the depth was eight or nine inches. The defendant's witnesses estimated its depth to be two or three inches. The crossing was twenty-four years old and had not been repaired or resurfaced for twenty years.

It is the contention of the appellant that neither the photographs of the crossing nor the plan produced by the defendant were of any assistance in determining the amount of this depression and that "the best proof whether or not this combination cross-walk and drain was constructed and maintained in a reasonably safe condition for travel or whether on the other hand it was constructed and maintained in a manner that would jolt passengers in an automobile, thereby causing possible injury, was its effect upon an automobile passing over it."

Appellant states that "this evidence was to show that a condition capable of causing injury existed, that defendant, therefore, had constructive knowledge of it and in order that the jury might determine under all the evidence whether the defendant exercised reasonable care or not." The trial judge refused such offers of proof as to the intersection's harmful potentialities. Plaintiffs also offered to prove by witnesses that in their opinion the crossing was a dangerous one. This evidence was rejected and rejections of these offers of proof constitutes the subject of several assignments of error. Plaintiffs' offers which were excluded by the court were as follows: Witness A: That he passed on this intersection frequently from 1930 to 1939, that there was a depression in the highway and that in going over this highway in his automobile he was jolted from his seat. Witness B: That he and a passenger were jolted (the passenger "off the seat") in crossing this point prior to February 12, 1939; that the condition of the intersection on February 12, 1939, was the same as it existed for some time prior thereto and that in his opinion the crossing presents a dangerous condition. Witness: That in passing over the intersection at times prior to February 12, 1939, his machine was jolted and that the condition there is a dangerous one. Witnesses D and E: That the condition at the intersection was unsafe and dangerous on or about February 12, 1939.

These offers were properly excluded. The 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 conditions which might have caused that jolt or contributed to it are first shown, such as the speed of the car, the degree of inflation of the tires, just what the driver did in respect to the steering wheel and the character and the condition of the springs in the car. If the excluded testimony as to the jolting had been admitted, it would have been competent for the defendant to show in rebuttal that the conditions of the car itself or the way it was handled caused or contributed to that jolting and to show further that other cars had passed over the same intersection without any jolting of their cars. All this would have raised many collateral issues.

The chief objection to the admission of testimony as to happenings of similar accidents at the same place is that the fact of accident may admit of being explained by other causes than the one sought to be established. In Metropolitan Asylum District v. Hill, 47 L.T.R.N.S. 29, Lord O'HAGAN speaking of an offer of evidence of the effects of other hospitals in spreading contagion said: "Without proof as to the state and management of the other hospitals so as to establish a substantive similarity, any inference drawn from a comparison of their operation with that of the H. asylum might have been quite fallacious and deceptive. But, even without regard to this, . . . it would have involved the jury in a multitude of collateral inquiries, calculated to confuse and embarrass them, and it might have been endlessly prolonged by an indefinite multiplication of objects of comparison." In Insurance Co. v. Tobin, 32 Ohio St. 77, 90, the court in that case said in excluding evidence of previous instances of steamboat disasters occurring through snags, etc., that "it was calculated to create as many collateral issues as special cases of such loss introduced." In Amoskeag Co. v. Head, 59 N.H. 332, 337, Chief Justice DOE speaking for the Supreme Court of New Hampshire said in excluding evidence of sums paid for thirty-two other rights of flowage, as indicating value: "How far a trial can justly and reasonably go upon such [additional] issues is often a question of fact. The trial to which parties are entitled is not an endless one, nor one unreasonably protracted and exhausting. There may be a vast amount of evidence, relevant in a certain legal sense, but so unimportant, when compared with an abundance of better evidence easily available, as to be properly excluded." In Mayhew v. Mining Co., 76 Me. 100, 113, the Supreme...