Lewis v. Mellor

• Decision Date: 27 October 1978
• Docket Number: Carol Ann LEWIS,Appellant (at No. 1021)
• Citation: 393 A.2d 941,259 Pa.Super. 509
• Court: Pennsylvania Superior Court

393 A.2d 941

259 Pa.Super. 509

Carol Ann LEWIS, Appellant (at No. 1021), v. Marion H. MELLOR, Appellant (at No. 1293), and Jacquelyn L. McCalla. Nos. 1021 1293.

Superior Court of Pennsylvania.

October 27, 1978

Argued Sept. 19, 1977. [Copyrighted Material Omitted]

M. A. Bernstein, Philadelphia, with him Michael Shekmar, Philadelphia, for appellant at No. 1021, and appellee, Lewis, at No. 1293.

No appearance entered nor brief submitted for appellant at No 1293, and appellee, Mellor, at No. 1021.

T J. Mullaney, Norristown, with him Hugh O'Neill, Norristown, for appellee, McCalla.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH Judge:

This is an appeal from a judgment entered upon a jury verdict in an automobile accident case.

The accident occurred on January 27, 1967, at about 12:30 p. m., on Route 309 near the Norristown ramp. The highway was four lanes wide; each lane was 12 feet wide; the two northbound lanes were divided from the two southbound lanes by a concrete medial barrier. The road surface was wet; it was windy and raining. Jacquelyn McCalla was driving her automobile in the outside northbound lane; Carol Ann Lewis occupied the right front seat. Marion Mellor was driving her automobile in the outside southbound lane; it went out of control and crossed the medial barrier over onto the northbound traffic lanes, where it was struck one to two seconds later by Miss McCalla's automobile. As a result of this collision Miss Lewis suffered severe injuries, including brain damage.

Miss Lewis brought suit in trespass against both Miss McCalla and Mrs. Mellor. The jury found that Miss McCalla had not been negligent, but that Mrs. Mellor had been, and as to her, awarded Miss Lewis $350,000 in damages. Miss Lewis filed a motion for a new trial against Miss McCalla. The lower court denied the motion and this appeal resulted. ^[1]

As appellant, Miss Lewis argues that the trial judge erred: (1) in excluding certain testimony concerning the distance between the McCalla and Mellor automobiles; (2) in admitting opinion evidence regarding Miss McCalla's ability to avoid the Mellor automobile; (3) in refusing a requested point for charge, which undertook to define Miss McCalla's duty to avoid the Mellor automobile; and (4) in instructing the jury on the doctrine of sudden emergency.

1

In this portion of her argument, appellant assigns as error two rulings by the trial judge. First: The trial judge excluded appellant's deposition testimony that when she shouted a warning to Miss McCalla, the distance between the McCalla and Mellor vehicles was "(f)rom about the front porch out there to Nell's house on the corner." Excluded with this testimony were two measurements of the distance between the front porch and Nell's house, made after the deposition, one by appellant's counsel and the other by her father. These measurements were 270 feet and 355 feet respectively. ^[2] Second: On direct examination Mrs. Mellor testified that when she began to cross the medial barrier, the distance between her automobile and Miss McCalla's was about "two city blocks." Appellant's counsel then proceeded to question Mrs. Mellor as follows:

BY MR. SHEKMAR:

Q. Can you tell us, when you referred to city blocks, where you refer to as city blocks? What city blocks are you referring to? You said city blocks. Now where are they? Take your time now.

A. If I were looking out here in Norristown, for instance, if I stood at the corner and looked down, it would be two blocks.

Q. Which corner would you stand on, Mrs. Mellor? We are in the courtroom now. Which corner would you stand on? Can you describe that better to us? Which corner would you stand on?

MR. BROWN: I object, Your Honor. Again its the same problem.

THE COURT: Objection sustained. She can estimate the distance; but city blocks are like the length of your nose; they vary.

MR. SHEKMAR:

Q. Well, can you give us some estimates in feet?

A. It was just they were far away, but I could see the lights. That's all.

(N.T. 103-104)

In assigning the judge's rulings as error, appellant argues that testimony concerning the distance between the McCalla and Mellor automobiles was relevant to her case against Miss McCalla. As a general proposition, this argument may be accepted. However, the fact that testimony is relevant is not by itself enough to show that its exclusion was error.

The general rule is that "questions concerned with the admission or exclusion of evidence are within the sound discretion of the trial court and will be reversed on appeal only where a clear abuse of discretion exists." Westerman v. Stout, 232 Pa.Super. 195, 202, 335 A.2d 741, 745 (1975); Patrick F. Dalton Company v. Trans-American Freight Lines, Inc., 219 Pa.Super. 223, 280 A.2d 635 (1971); Cartmel v. Williams, 207 Pa.Super. 144, 215 A.2d 282 (1965); Wolfe v. Pickell, 204 Pa.Super. 541, 205 A.2d 634 (1964). In exercising this discretion, the trial judge may refuse to admit evidence on the grounds that it may "confuse, mislead or prejudice the jury." Keough v. Republic Fuel and Burner Co., 382 Pa. 593, 116 A.2d 671 (1959); Thompson v. Amer. Steel & Wire Co., 317 Pa. 7, 175 A. 541 (1934). Here, the trial judge did not exclude testimony concerning distance altogether. As regards appellant's testimony, the judge excluded a general statement ("to Nell's house"), and two specific measurements of distance. We cannot say that this represented a clear abuse of discretion. Without the measurements, the general statement made no sense; the measurements, however, were in conflict, and to admit them might have confused or misled the jury. As regards Mrs. Mellor's testimony, the judge in fact did not exclude any testimony; rather, he stated that Mrs. Mellor could estimate the distance she meant by her reference to "two city blocks", but she then indicated that she could not offer an estimate. In any case, the judge's rulings did not prejudice appellant's case because other evidence was admitted concerning the distance between the two automobiles, the speed of the automobiles, and the time between Mrs. Mellor's entry into the wrong lane and the collision. Included in this evidence was Mrs. Mellor's testimony, which has been quoted above, that the distance was "two city blocks" and that the lights on Miss McCalla's automobile were "far away". This testimony supported appellant's theory that Miss McCalla had been negligent in failing to avoid Mrs. Mellor's automobile. ^[3] Eugene Farber, an eyewitness to the accident, testified on direct examination by Miss McCalla's counsel that he was a couple of hundred feet behind Miss McCalla's automobile (a Volkswagen) when the accident occurred, and that the time between the entrance of Mrs. Mellor's car onto the northbound lane and the collision was one or two seconds. He was then asked whether there appeared to be "an escape route available for the Volkswagen driver . . . a means of avoiding the collision?", and he answered:

"Well, I thought about that since the accident. I could have been involved. I came to a stop beyond the point where the accident took place, and although I did not brake as hard as I possibly could, I did brake pretty hard. As to whether there was some path that the driver could have taken to avoid the accident, I am not really sure. It may be that with a combination of luck and skill, there was some available route, but I would have hated to have been the driver of the VW, at that moment."

(N.T. 242)

Upon objection by appellant's counsel the trial judge excluded the last phrase ("but I would have hated to have been the driver of the VW, at that moment"), but refused to exclude the testimony that probably only with luck and skill could Miss McCalla have found another path or route. Miss McCalla's counsel then asked Mr. Farber what he meant by skill, and over objection by appellant's counsel, Mr. Farber answered:

"Well, I would say, first, a very fast reaction time; and then secondly, an ability somehow to adjudge the path of the closing vehicle and to anticipate the point of impact at the intersection of the two paths, and to steer in such a way to be elsewhere. It is not obvious to me that that is something that would be immediately apparent to one where to go."

(N.T. 244) ^[4]

Appellant argues that the trial judge erred in admitting Mr. Farber's testimony because it was improper opinion evidence.

The decision whether testimony constitutes fact or opinion may be difficult, for "(t)here is no litmus test for fact versus opinion." Strausser v. Strunk, 222 Pa.Super. 537, 544, 295 A.2d 168, 173 (1972) (PACKEL, J dissenting); See 7 Wigmore, Evidence, § 1919 (Chadbourn rev. 1978). Often testimony that might be classified as opinion is nevertheless admitted almost as a matter of course. Statements such as "it made an awful racket," "the weather was miserable", "he looked drunk", are in a sense all opinions, but a little attention to our every day way of speaking will show that they are more accurately classified as shorthand, or compendious, statements of fact, based on personal observation. ("Well, when I say he looked drunk, what I mean is that he smelled of whiskey, his clothes were a mess, and he was swaying back and forth.") In such cases the experienced trial judge will admit the statement. To instruct the witness that he must "tell us only the facts, not your opinions," may confuse or intimidate the witness; the judge may therefore decide to let the witness express himself naturally, leaving it to counsel to question the witness further, if elaboration or clarification is thought desirable. See McCormick, Handbook on Evidence, § 11 (West ed. 1972); See also Wilson v. Penna. R. Co., 421 Pa. 419, 219...