Nestor v. George

• Decision Date: 12 April 1946
• Citation: 354 Pa. 19,46 A.2d 469
• Parties: Nestor, Appellant, v. George et al., Trustees
• Court: Pennsylvania Supreme Court

46 A.2d 469

354 Pa. 19

Nestor, Appellant, v. George et al., Trustees

Supreme Court of Pennsylvania

April 12, 1946

Argued March 29, 1946

Appeal, No. 39, March T., 1946, from judgment of C.P Allegheny Co., April T., 1944, No. 2163, in case of Andrew P Nestor v. W. D. George et al., Trustees of Pittsburgh Railways Company. Judgment reversed.

Trespass for personal injuries. Before CHALLENER, J.

Verdict and judgment for defendants. Plaintiff appealed.

The judgment of the court below is reversed with a venire.

Clyde P. Bailey, with him Dane Critchfield and Bailey & Critchfield, for appellant.

Leo A. Nunnink, with him J. R. McNary, for appellees.

Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. CHIEF JUSTICE MAXEY

This is an appeal from the refusal of the court below to grant a new trial. The plaintiff brought a suit in trespass against the defendant, claiming damages for injuries to his right eye. His claim was that on May 2nd, 1942, as a street car on which he was a passenger, approached an intersection and he was in the act of depositing his fare in the coin box before alighting, "the car stopped with a jerk, the doors were thrown open and the fare register cord struck him in the right eye." He continued on the street car, a short distance, to the end of the line and there he examined the cord and "found on the bottom" thereof "a steel nut". This cord was said to be "similar to a clothes-line, but heavier". He said there were "several knots tied in the free end of the rope and the steel nut was at the bottom". As a result of the blow to the right eye, the plaintiff claimed its retina was detached and its sight destroyed. At the second trial on February 24, 1945, a verdict was returned in favor of the defendant. After the refusal of a new trial, this appeal followed.

The second assignment of error is based on the admission of testimony in behalf of the defendant showing a condition of the fare rope at a period of time five days prior to the accident. This evidence was not followed by any proof that the condition the rope was in five days before the accident continued until the date of the accident. This assignment is sustained. Henry's "Pennsylvania Trial Evidence", Second Edition, Sec. 32, p. 51, says: "Whenever the condition of a particular place or thing at a certain time is in question, evidence of its condition at a prior or subsequent time is admissible if accompanied by proof that it has not changed in the meanwhile [italics supplied]... But where it appears from the circumstances that the condition of a thing or place at another time would afford no just criterion of its condition at the time to which the inquiry relates, evidence of condition at such other times will not be received." Citing McKee v. Pa. R.R., 255 Pa. 560, 565, 100 A. 454; Richardson v. Public Ledger Co., 260 Pa. 602, 606, 103 A. 955.

The third assignment of error is based on the admission of evidence in behalf of the defendant of the usual and customary condition of far cords in other street cars of the defendant. This evidence was inadmissible. The fact that other fare cords on the street cars of the defendant company did not have a nut on the end of them did not tend to disprove the plaintiff's allegation that the cord in question did have a nut on its end. The evidence was, therefore, irrelevant. In Com. v. Crowell, 52 Pa.Super. 539, it was held that where in a prosecution under the Ice Cream Act of March 24, 1909, P.L. 63, it is shown that a pint of ice cream for the sale of which the defendant was prosecuted had been analyzed and found deficient in butter fat, it is not error to exclude the evidence of experts to show that samples taken from other parts of the same can from which the pint was taken, might show different percentages of butter fat. See Dubois v. Bigler et al., 95 Pa. 203, and also Loss v. Avalon Borough, 276 Pa. 207, 119 A. 915; Taylor v. Monroe, 43 Conn. 36; Brooks v. Acton, 117 mass. 204. The third assignment of error is sustained.

The fourth assignment of error is based upon the refusal of the court to admit the testimony of witness, Hon. James L. O'Toole, Jr. The witness represented plaintiff as counsel, in a suit against the Pittsburgh Railway Company, for injuries sustained by the plaintiff's eye while passenger on that company's street car in October 1928. Plaintiff made an offer that the witness would testify that the injuries then complained of "were all on the left side of the face and not on the right side." Dr. Kuntz had testified that he had attended plaintiff in 1928 and that the plaintiff told him at the time that he had been struck in the right eye while riding on a street car on October 9th, 1928. The object that struck him was a limb of a tree which was "extending from a landscape wagon".

The plaintiff testified that Dr. Kuntz had not treated his right eye in 1928 but had treated his left eye. Therefore, the question of whether the left eye or the right eye had been injured in 1928 was a fact in issue and when the man who had been plaintiff's counsel in the action based on the 1928 injury, offered to testify after refreshing his recollection by consulting his files, his primary knowledge of the inquiry being based on seeing the plaintiff at that time and on the statement of claim that he, the attorney, drafted at that time, the evidence should have been admitted. The court erred in stating that this testimony was "purely hearsay and not rebuttal". It was not hearsay because it was based upon the witness' own observation, as recorded by him in his files of the case, and it was clearly in rebuttal of the testimony of Dr. Kuntz. A witness may use a book or memorandum for the purpose of refreshing his memory even though the writing itself would not be competent evidence: Babb v. Clemson, 12 S. & R. 328; Selover v. Rexford, 51 Pa. 308, 310; Gilmore v. Whilson, 53 Pa. 194, 197; First National Bank v. Bank, 114 Pa. 1, 8, 6 A. 366; Clark v. Traction co., 210 Pa. 636, 639; 60 A. 302. A proper foundation for the admission of the secondary evidence must be laid by showing the witness had some knowledge of the events at the time they took place and must be certain that the writing correctly recites those events: Com. v. Roth, 71 Pa.Super. 71, 74; Sabin v. Michaelsen, 72 Pa.Super. 226, 229; Ramstein v. B. & L. Asso., 65 Pa.Super. 190, 193. This assignment of error is sustained.

The fifth assignment of error is based upon the court's rejecting an offer of a portion of the testimony which had been given at a previous trial of the same case by a witness for the defendant, the witness having died since the former trial. At the trial now being reviewed. the defendant witness, Jozefick, testified that after the accident, he had removed the fare register rope involved in this case, at the request of the foreman, and that the rope did not have any steel nut on the end of it. His testimony that it was he who removed the rope was in contradiction to the testimony of A. D. Bramwell, a witness called by the defendant in the...