Livergood v. SJ Groves & Sons Company

Decision Date02 June 1966
Docket NumberNo. 15552.,15552.
Citation361 F.2d 269
PartiesAlverta LIVERGOOD and Omer Livergood, Her Husband, in Their Own Right, and on Behalf of Roy Livergood, Plaintiffs, v. S. J. GROVES & SONS COMPANY, a Minnesota Corporation, Appellant, v. Charles LIVERGOOD, Third-Party Defendant.
CourtU.S. Court of Appeals — Third Circuit

Donald W. Bebenek, Pittsburgh, Pa., (Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., on the brief), for appellant.

James P. Gill, Pittsburgh, Pa., (Edward O. Spotts and Spotts, Gill, Gavin & Morrow, Pittsburgh, Pa., and Joseph J. Lee, Clearfield, Pa., on the brief), for plaintiffs-appellees.

Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.

GANEY, Circuit Judge.

At approximately 11:15 a. m. on June 30, 1963, plaintiffs were injured, two of them seriously, when the passenger car in which they were traveling collided with defendant's flat-bedded truck on Route 879, a winding country road bordering the bank of the West Branch of the Susquehanna River. It was a two-way blacktop highway, the main traveled portion of which was eighteen feet wide; the center was not marked by a line. Its edges were in a jagged condition, reducing the most traveled portion of the road to about sixteen feet in width. The point of collision was about five and one-half miles northeast of Clearfield in Goshin Township, Clearfield County, Pennsylvania. Immediately prior to the collision, plaintiffs were traveling in a southwesterly direction, while the truck, carrying two tons of baled hay, forming a load over six feet high, from a farm one mile southwest of Carensville, to Frenchville, was moving in the opposite direction. Sergeant Andrew F. Zavatsky, a Pennsylvania State Trooper, testified that the width of the truck bed, by actual measurement, was three inches short of eight feet, the legal maximum dimension.

The question of liability in the diversity action, in which plaintiffs demanded a jury trial, depended on which of the vehicles extended over the center of the highway at the time of collision.1 There were no eyewitnesses to the accident other than the occupants of the two vehicles. The jury's answers to special interrogatories reveal that defendant was guilty of negligence which was the proximate cause of the injuries and damages sustained by plaintiffs, and that the third-party defendant, the operator of the passenger car in which plaintiffs were traveling, was not. The District Court denied defendant's motion for a new trial.2 Although defendant has mistakenly appealed from the order denying a new trial, we consider its appeal as if it were from the final judgment. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Cromling v. Pittsburgh and L. E. R. Co., 327 F.2d 142, 144, n. 1 (C.A.3, 1963).

Defendant's first point is that the trial court erred in allowing the recorded testimony of a witness, taken out of the hearing of the jury, to be later read into evidence before the jury for the purpose of impeaching its witness, George J. Lash, the driver of the truck. It contends that such evidence was about a collateral matter, and its admission was highly improper and extremely prejudicial to its case, requiring the granting of a new trial.

Prior to testifying on their own behalf, plaintiffs called as a witness in their side of the case one Kenneth Billotte, an inhabitant of Frenchville, a town 20 miles northeast of Clearfield. He testified that while returning by automobile from Clearfield he came upon the scene of the accident about an hour after the collision. In response to a question whether he had on his trip to Clearfield that day observed the truck before the time of the accident, he stated that about a quarter of a mile south of the point of collision it crowded him off the road. Defendant's objection to this answer was sustained. Although the trial court gave no reason at that time it later said that its ruling was based on the fact that the encounter was too remote from the scene of the accident to have any bearing on the collision, basing its ruling thereon on the distance the truck was away from the accident on another part of the road, but not sustaining it as to the width of the truck. Plaintiffs' counsel questioned Billotte about the position of the two vehicles on the highway after the collision and then requested a sidebar conference. He informed the court that he wished to learn from Billotte, among other things, whether he was crowded off the road because of the manner in which the truck was loaded. The court explained that it was not limiting plaintiffs with respect to any testimony that may show that physically the truck was too wide to occupy less than half of the road. After some discussion, the court made the following suggestion: "Let's do this. Let's hear what the witness has to say out of the hearing of the jury." In response, counsel for defendant stated: "All right. I have no objection to that." The court thereupon recessed the jury for a short time, and Billotte was further examined out of their presence as follows:

By Mr. Gill
* * * * * *
Q. Well, what I am getting at, was the truck itself over the center line or was the truck just too wide for this road?
A. Well, it could be a little bit of both.
Q. That is your opinion? I mean, that is your recollection that it was both?
A. Right.
Q. He was both on your side of the road and the truck was too wide also?
A. Right.
By Mr. Bebenek
Let me ask him just a couple of questions.
The Court: Proceed. Cross-Examination by Mr. Bebenek:
Q. You say this happened somewhere near a bridge?
A. Right near the side of the bridge.
Q. Is that a real sharp hairpin turn? That is, when you come down the hill you make a sharp hairpin turn and go up the hill between Clearfield and the point of the accident?
A. Right.
Q. Is that where that happened?
A. Right where that bridge is before you go up that hill.
Q. All right, which side of the bridge did it happen on?
A. On the other side, Clearfield side of the bridge.
Q. So, the truck was still coming down the hill and heading for the sharp turn and the bridge?
A. Right.
Q. Okay. If I told you that it was a mile and one-fourth from the scene of the accident, would you agree with that?
A. Well, I couldn\'t say. I said approximately when he asked me the questions so —
Q. Okay.
Your Honor, I am going to renew my objection to this testimony, and I will submit to the Court that that bridge, by actual measurement, is one mile from the scene of the accident.3
The Court: We feel that the circumstances are too remote from the scene and we will sustain the objection.

However, with the court's permission, Mr. Gill questioned Billotte further about the width of the truck in this manner:

Q. All right, assuming that the truck was on its own side of the road as to this road surface in this area — incidentally, when the truck passed you, was the road the same as where the accident happened in width and type?
A. About the same.
Q. If the truck had been on its own side of the road, would it have extended over to your side of the road also, even though it was on its own side?
A. Would you repeat that please?
Q. * * * If the four wheels of the truck had been on its own side of the road, would the truck have still been too large in width so that it would have been extended over to your side of the road?
A. No, not too much.
Q. What?
A. Not too much.
Q. But, would it have extended on your side of the road some?
A. Yes, right.

At this point Mr. Bebenek objected to Billotte giving opinion evidence for the actual measurement of the width of the truck and road were already in evidence. The court sustained the objection and gave permission to recall the jury. In chambers at the close of the plaintiff's case, there was some colloquy which will be adverted to later.

After asking Billotte in the presence of the jury eight additional questions having no bearing on the encounter episode, Mr. Gill turned the witness over to the defendant and third-party defendant for cross-examination. Counsel for the latter stated that they had no further questions to ask of him. The court thereupon excused the witness, Billotte.4 No objection was interposed to this action.

Later in chambers, after plaintiffs had rested their case as to the question of liability, Mr. Gill stated to the trial judge as follows:

"Now, on cross-examination I * * * propose to ask Mr. Lash the driver of the truck if it was not true that first, I will identify this bridge that is down the road, whether sic it is, and I will bring out the fact that the road is approximately the same width at that point as it is at the point of the accident and I will ask him if it is not true that he crowded Mr. Billotte off the road at that point just prior to the accident. In the event of a negative answer, I propose to call Mr. Billotte too. This is a matter of credibility now. If he says that he did, then, of course, that is that."

To this proposal, the court said: "Well, I think you can attack his Lash's credibility on that * * * if you get a flat no answer." During cross-examination, Mr. Lash was questioned by Mr. Gill in this way:

Q. All right. Now isn\'t it true that right in the area of that bridge, that you forced another car off the road on your way up there?5
A. No.
Q. That is not true?
A. No, not to my knowledge.
Q. Well, you would know it, wouldn\'t you?
A. I sure should have. That\'s why I said no.

Following the completion of cross and redirect-examination of Lash in defendant's side of the case, Mr. Gill, over defendant's objection, was permitted to read to the jury Billotte's recorded testimony taken out of the hearing of the jury. Before the reading had been completed, the court admonished the jury in this fashion: "* * * This testimony is not offered, and is not to be considered by you, as any evidence of the position of the cars, and particularly of this truck, at the time of the accident, but it is...

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