Morris v. Moss

• Decision Date: 15 October 1981
• Parties: Kathleen MORRIS, Appellant, v. John F. MOSS.
• Court: Pennsylvania Superior Court

Page 184

435 A.2d 184

290 Pa.Super. 587

Kathleen MORRIS, Appellant, v. John F. MOSS.

Superior Court of Pennsylvania.

Argued Dec. 1, 1980.

Filed May 15, 1981.

Reargument Denied Oct. 15, 1981.

Gerard J. Jackson, Philadelphia, for appellant.

Edward J. Carney, Jr., Media, for appellee.

Before SPAETH, BROSKY and HOFFMAN, JJ.

BROSKY, Judge:

This case arises from an automobile accident in which the automobile driven by the appellee struck the appellant who was a pedestrian. A jury found the defendant not to have been negligent. Appellant argues that certain evidence was improperly admitted and that the charge to the jury failed to include points which appellant claims should have been explained to the jury. Finding error in the instructions given to the jury, we reverse the order of the lower court and remand for a new trial.

Appellant's first allegation of error is the admission of testimony by a policeman who arrived at the scene of the accident after it occurred and who testified as to his estimate of the speed at which appellant was traveling. Appellant objects to the use of his testimony on the grounds that the witness was not properly qualified as an expert and that he testified on an ultimate issue in the case. Neither argument calls for the exclusion of the testimony.

At the outset of our discussion we note that:

Rulings on evidence are within the discretion of the trial judge and will not be reversed absent a manifest abuse of that discretion. Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 410 A.2d 1282 (1980), Westerman v. Stout, 232 Pa.Super. 195, 335 A.2d 741 (1975).

In establishing that Officer Boyer was an expert qualified to state an approximate rate of speed based on skid marks, the appellee's counsel asked the witness what courses he had taken which would be of assistance in interpreting skid marks. The witness stated that he had taken college seminars in traffic safety and traffic accidents and had also attended State Police seminars on traffic safety. He also testified that at the time of the accident he had been an officer for eight years. The witness was asked to estimate the speed at which appellee had been traveling based on these experiences.

In Rosato v. Nationwide Insurance Company, 263 Pa.Super. 340, 397 A.2d 1238 (1979), this court said "However, an officer may, based upon skid measurements and his expertise, state the approximate speed of a car even though he was not present at the accident." 263 at 345, 397 A.2d at 1241. See: Rutovitsky v. Magliocco, 394 Pa. 387, 147 A.2d 153 (1959). We would add that, as with the admission of evidence, the question of the qualifications of an expert witness is one for the discretion of the trial court. Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880 (1980). "If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert." Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979). The lower court did not abuse its discretion in this matter.

Appellant cites the cases of Brodie v. Philadelphia Transportation Company, 415 Pa. 296, 203 A.2d 657 (1964) and Algeo v. Pittsburgh Railways Company, 202 Pa.Super. 548, 198 A.2d 415 (1964) as supporting his argument. The cases are easily distinguished from the one before us.

In the present case, the officer testified, in relevant part, only to the speed at which he estimated the appellee to have been driving. In Brodie, the witness whose testimony was found improperly admitted had testified additionally that the car in question had been out of control and was traveling too fast for conditions. His testimony went beyond the estimate of speed, based on skid marks, found permissible in Rutovitsky and Rosato.

In Algeo, the witness testified that the accident could not have occurred in the manner in which the opposing party contended it had. This testimony also included statements beyond those permitted by Rutovitsky and Rosato. The exclusion of testimony in Brodie and Algeo does not justify its exclusion here.

Appellant also argues that the introduction of the hospital record was error in this case because the notation contained in the record that appellant was conscious while in the emergency room is one of opinion, not fact, and as such does not fall into the hearsay exception found in the Business Records Act. ¹ We agree.

Hospital records are admissible to show the fact of hospitalization, treatment prescribed and symptoms found. Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975), Platt v. John Hancock Mutual Life Insurance Company, 361 Pa. 652, 66 A.2d 266 (1949).

As was explained in Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979):

No such doubts as to reliability and accuracy are entertained when a record is offered merely to prove facts, such as the event of hospitalization, treatment prescribed, symptoms, given, or the existence of some readily ascertained substance or chemical within the body. Id. at 592, 405 A.2d at 1264.

A determination that a person is conscious is not a fact free from doubt. As is explained in The Attorney's Textbook of Medicine, vol. 3A, page 83-14 (1980), "in clinical medicine, a person is 'conscious' if he is fully aware of his surroundings, even though he may be misinterpreting or falsely interpreting these surroundings." We believe that this determination is of a different character than the routine findings of fact permissible under the business records exception to the hearsay rule since it requires the application of scientific principles. The notation in question in this case is found in the section of the report entitled "Physician's Findings." The introduction of such evidence should be by testimony of the person who made the determination.

Despite the error of the lower court, we would not reverse on this issue alone. Appellant testified that she drifted in and out of consciousness while in the hospital. The hospital record stated only that she was conscious at the time of the examination. It provides no real refutation of appellant's own position and its admission was therefore harmless error.

Appellant also claims that the charge to the jury was erroneous in three respects.

In analyzing appellant's claim, we have been guided by the principle that a charge to the jury is to be read as a whole. Galizia v. McKim, 210 Pa.Super. 144, 149, 232 A.2d 213, 216 (1967).

Appellant first argues that the following charge should have been given.

A driver cannot carelessly inflict injuries on users of highways between crossings. His duty is governed entirely by the circumstances of whether he saw such persons in the way in time to avoid hitting them, or whether he should have anticipated their acts when they had committed themselves to a dangerous position.

Appellant complains that the charge given did not inform the jury that a driver can be required to anticipate the acts of pedestrians who have committed themselves to dangerous positions. The case from which appellant drew the language for the proposed charge is Purdy v. Hazletine, 321 Pa. 459, 184 A. 660 (1936). The Purdy court was quoting language from an earlier opinion in which the court also said:

... if at a designated place where there is anything to challenge his attention, and warn him that he should expect heedless acts, it becomes the duty to avoid, if possible, an accident ... 321 at 461, 184 A. at 661.

The charge given in the present case complied with the description of a driver's duty found in Purdy. In relevant part, the instruction was:

However, if a pedestrian before being hit has been on the highway for a long enough period of time so that a careful driver could see her and avoid the accident, and if the pedestrian is then hit, you may conclude that negligence has then been established on the...