Nyce v. Muffley

• Decision Date: 12 January 1956
• Docket Number: 4559
• Citation: 384 Pa. 107,119 A.2d 530
• Parties: Harvey G. NYCE and Mamie F. Nyce, his wife, Appellants, v. Raymond S. MUFFLEY.
• Court: Pennsylvania Supreme Court

119 A.2d 530

384 Pa. 107

Harvey G. NYCE and Mamie F. Nyce, his wife, Appellants, v. Raymond S. MUFFLEY.

No. 4559

Supreme Court of Pennsylvania

January 12, 1956

Argued November 16, 1955

Appeals, Nos. 72 and 73, Jan. T., 1955, from judgment of Court of Common Pleas of Lehigh County, Sept. T., 1952, No 216, in case of Harvey G. Nyce et ux. v. Raymond S. Muffley. Judgment affirmed.

Trespass for personal injuries. Before HENNINGER, P.J.

Verdict for defendant and judgment thereon. Plaintiffs appealed.

Judgment affirmed.

W F. Steigerwalt, with him John F. Stine, Jr., for appellants.

William S. Hudders, with him Randall Snyder and Butz, Hudders, Tallman & Rupp, for appellee.

Before STERN, C.J., STEARNE, BELL, MUSMANNO and ARNOLD, JJ.

OPINION

MR. JUSTICE BELL

Plaintiff at 7:30 p.m. on the evening of January 19, 1951, was crossing 7th Street in Allentown at or near the intersection of 7th and Cedar Streets. Seventh Street is 50 feet wide from curb to curb; two cars were parked on 7th Street. She testified that she stood on the corner and waited for three or four automobiles, which came from her right, to pass; she then looked to the left and saw nothing; she was able to see a far distance; she took six or seven steps into 7th Street and then saw for the first time defendant's automobile which came from her left and was "about an arm's length away", without lights. While taking the six or seven steps in the street she was looking in the direction from which defendant's car came and there was nothing to block out her vision. Some part of the automobile struck her; she was severly injured and does not remember anything else about the collision except that the car stopped about 15 feet away from her.

According to plaintiff's daughter and another witness, she was picked up about 30-40 feet south of the intersection. According to defendant and two witnesses she was picked up about 55-60 feet from the intersection where she was found sitting in the street at defendant's rear fender. The testimony showed that the intersection was well lighted on the night in question by virtue of a street light at the intersection, a lighted gasoline station on one corner and the lights from a grocery store on another corner.

Defendant testified he was traveling about 10 to 15 miles an hour; that his headlights were lit; that he saw no one at the intersection but that an impact occurred with his car about 60 feet beyond the intersection of the two streets.

The jury brought in a verdict for defendant. Plaintiff filed 12 reasons for a new trial. The Court dismissed plaintiff's motion for a new trial and said, inter alia: "We can say without hesitation that it [the verdict] was amply supported by credible testimony."

Plaintiff first alleges that the Court erred in refusing to permit plaintiff's surgeon, Dr. Bachman, who first saw her on February 1, 1951, and operated on her for a hernia the next day, to testify on re-direct examination, what plaintiff had told him as to the cause of the hernia. Dr. Bachman was called out of turn and before there was any evidence of the accident or of negligence or the injuries allegedly suffered therefrom. Dr. Bachman on cross examination testified he did not know when and how the incisional hernia occurred not did he know whether or not the hernia was due to the accident. Plaintiff on re-direct examination sought to have the doctor testify that plaintiff told him the hernia first appeared after the accident. Defendant's objection was sustained. Plaintiff subsequently testified that the hernia came on immediately after she arrived at the hospital, and her family physician, although he made no notation of the incisional hernia on Mrs. Nyce's chart, testified that in his opinion the incisional hernia was caused by the accident. In view of the verdict for defendant, we need only say that if this was error it was certainly harmless error since it went only to the question of damages.

Plaintiff contends that the Court erred by admitting photographs of the 7th and Cedar Streets intersection when they were taken two years after the accident and in the daytime. The Court admitted the photographs with this clear and specific limitation: "The exhibits will be received solely for the purpose of showing the permanent physical aspects at the intersection of 7th and Cedar and for no other purpose. The jury will understand that when these pictures get into your hands you will understand that they are here for the sole purpose of showing the permanent conditions at that corner. The streets seem to be wet in these pictures ... and the evidence shows that that condition did not exist on January 19, 1951, and of course these pictures cannot show the visibility on January 19, 1951. They can show geometrically perhaps what could be seen, but not actually what was visible on account of the light at that particular time; for that limited purpose the exhibits will be received."

The admission of photographs is a matter largely within the discretion of the trial Judge. A photograph must be verified either by the testimony of the person who took it or by another person with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the accident, or if there is a difference or change, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the jury: Taylor v. Modena Borough, 370 Pa. 100, 87 A.2d 195; Beardslee v. Columbia Township, 188 Pa. 496, 41 A. 617.

The admission into evidence of photographs showing the location and scene of a crime for the limited purpose of showing the general location and the structures is a matter within the sound discretion of the trial Court even though the photographs were made in the daytime and the crime was committed after dark: Commonwealth v. Gidaro, 363 Pa. 472, 70 A.2d 359.

The admission of the photographs in the instant case for the limited purpose mentioned was not error.

Plaintiff seeks a new trial because after the trial had commenced it was discovered that one of the jurors was an uncle of defendant's counsel who at one time had performed legal services for him. The Court then asked plaintiff's counsel whether he wished a juror withdrawn. He replied he did not. A party will not be allowed to remain silent as to the possible disqualification of a juror which he knows about and gamble on a verdict, then, after he loses, be entitled to a new trial when he has failed or refused to ask for the withdrawal of a juror. Cf: Reiner v. Augustinian College, 250 Pa. 188, 95 A. 395.

The facts on which the next alleged error is based are shown by a stipulation of counsel as follows: "... 2. That if the said depositions were taken, the plaintiffs would call Elizabeth Arthur, forelady of the jury, who would testify that after the jury had decided upon its verdict ^[*] she communicated with the tipstaff in charge of the jury and asked for aid and assistance in connection with the manner in which the verdict slips were to be filled out; that the tipstaff thereupon called another tipstaff who came to the door of the jury room and told her how the verdict slips were to be filled out, whereupon they were so filled out and signed by the jurors; that this advice, aid and assistance merely related to the manner in which the verdict slips were filled out, and in no way constituted aid, advice or assistance as to what the substance of the jury verdict should be, they having already determined upon the same before calling the tipstaff."

We disapprove of such practice, but it is clear that no prejudice resulted to the plaintiff nor did it constitute reversible error. See Hunsicker v. Waidelich, 302 Pa. 224, 153 A. 335.

We find no merit in the other errors alleged by plaintiff and particularly no reversible error in the charge of the Court of its affirmance of defendant's points for charge.

DISSENT BY: MUSMANNO

DISSENTING OPINION BY MR. JUSTICE MUSMANNO:

I would grant a new trial in this case for reasons not discussed in the Majority Opinion. The principal dispute at the trial of this lawsuit was whether the plaintiff was struck by the defendant's car at a regular crossing (7th and Cedar Streets in Allentown) or at...