Heckathorne v. Lutton

60 Pa. D. & C.2d 260, 1973 Pa. Dist. & Cnty. Dec. LEXIS 387
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedMarch 12, 1973
Docketno. 445 of 1970
StatusPublished

This text of 60 Pa. D. & C.2d 260 (Heckathorne v. Lutton) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heckathorne v. Lutton, 60 Pa. D. & C.2d 260, 1973 Pa. Dist. & Cnty. Dec. LEXIS 387 (Pa. Super. Ct. 1973).

Opinion

LYON, J.,

Before the court for determination are defendant’s post-trial motions for a new trial and judgment n.o.v.

In disposing of a motion for judgment n.o.v. the evidence, together with all reasonable inferences therefrom, must be considered in the light most favorable to the verdict winner: Collins v. Hand, 431 Pa. 378, 246 A. 2d 398 (1968); Connolly v. Philadelphia Transportation Co., 420 Pa. 280, 216 A. 2d 60 (1966); Schwegel v. Goldberg, 209 Pa. Superior Ct. 280, 228 A. 2d 405 (1967).

The accident giving rise to this lawsuit occurred at approximately four o’clock on the afternoon of August 27,1969, upon a 15-foot wide, asphalt surfaced road in Slippery Rock Township, Lawrence County, Pa., which is known in the locality as Copper Road. The berms on either side of the road were approximately one foot in width, and the maximum legal rate of travel upon that road was 55 miles per hour: Act of April 29, 1959, P. L. 58, sec. 1002 (b) (6), 75 PS §1002 (b) (6). All of the parties to this lawsuit had full knowledge prior to the accident of the topography of the roadway as well as the other relevant physical conditions of the locality.

[262]*262Upon concluding a visit to the home of a friend located along Copper Road, plaintiff, who was wearing a protective motorcycle helmet, operated his motorcycle from the friend’s residence onto Copper Road and then proceeded in a southerly direction. The motorcycle was traveling at approximately 40 miles per hour when plaintiff reached the brow of the hill, approximately 150 feet south of his friend’s residence, where for the first time he observed defendant’s vehicle located about 70 feet to the south and substantially blocking his western half of the roadway. Although he immediately braked the motorcycle, causing a 38-foot skid mark upon the road, it could not be stopped before crashing into defendant’s automobile at a point located at about the center of the front bumper. At all times prior to the collision, plaintiff was on his own proper side of the highway. The impact caused him to be thrown over the top of the automobile and his motorcycle to be wedged somehow against the front of that vehicle. The automobile had not been moved when Trooper Fulton arrived some 20 minutes later and observed that 90 percent of the automobile protruded upon the roadway even though the two wheels on the passenger side were then resting upon the berm. The debris from the accident was lying wholly upon the surface of the road in front of defendant’s vehicle. Because of the topography of the roadway, it would have been impossible for either party to the accident to have seen the other before plaintiff arrived at the top of the hill.

Defendant moved for a compulsory nonsuit at the conclusion of plaintiff’s case in chief, asserting as a reason the existence of a fatal variance between the pleadings and proof. Defendant asserts that her motion for judgment n.o.v. must be granted because the court at the time of trial erroneously refused the [263]*263compulsory nonsuit, as well as a subsequent motion for binding instructions bottomed upon the same reason. We disagree.

The allegation of the complaint asserting defendant drove the automobile on the wrong side of the highway was sufficiently proved in plaintiff’s case in chief when he testified that immediately before the accident defendant’s automobile appeared to be moving northwards on the west side of the road. Plaintiff persisted in this assertion on cross-examination, but finally conceded it was possible the automobile was not moving at the time he observed it. That concession of plaintiff merely affected the weight of his former, contrary testimony.

Plaintiff was never expressly confronted with this alleged inconsistency so as to be made clearly aware of it, and, therefore, the rule of Stewart v. Ray, 366 Pa. 134, 76 A. 2d 628 (1950), that where a witness is confronted with a contradiction in his testimony his final statement controls, has no application in this case: Girard Trust Corn Exchange Bank v. Philadelphia Transportation Company, 410 Pa. 530, 190 A. 2d 293 (1963); Gardner v. Maley, 207 Pa. Superior Ct. 109, 215 A. 2d 285 (1965). The applicable rule is stated in Stevenson v. Pennsylvania Sports & Enterprises, Inc., 372 Pa. 157, 93 A. 2d 236 (1952), where the Supreme Court on page 162 said: “Where in one part of a plaintiff ’s testimony he is entitled to have his case submitted to the jury, and in another he is not, it is for the jury to reconcile the conflicting statements: Greene v. Philadelphia, 279 Pa. 389, 124 A. 134.” In accord, Gillingham v. Patz, 429 Pa. 308, 239 A. 2d 287 (1968); Green v. Prise, 404 Pa. 71, 170 A. 2d 318 (1961).

Plaintiff called defendant during his own case in chief and she testified that her automobile was parked at the time of the accident. It is well established that [264]*264where a litigant calls his adversary as for cross-examination pursuant to the Act of May 23, 1887, P. L. 158, sec. 7, 28 PS §381, the testimony thus obtained is conclusively taken to be true if not rebutted by other evidence; but it may always be contradicted by other evidence, in which event all the testimony and the truth thereof is for the jury’s consideration: Piwoz v. Iannacone, 406 Pa. 588, 178 A. 2d 707 (1962); Rogan Estate, 404 Pa. 205, 171 A. 2d 177 (1961); Morgan v. Phillips, 385 Pa. 9, 122 A. 2d 73 (1956). Here, plaintiff’s testimony stating that the automobile was moving is sufficient to rebut defendant’s testimony that it was parked. Since we have held that.plaintiff’s case may not fail as a matter of law because of inconsistencies in his own testimony, it must logically follow that it would not crumble because of contradictions by defendant’s testimony. Cf. Green v. Prise, supra.

Furthermore, even if we were to assume that plaintiff’s evidence was insufficient to prove that defendant’s vehicle was moving at the time of the accident, there was no fatal variance between the pleadings and proof. The Pennsylvania appellate courts have repeatedly held that the speed of a vehicle is not the proximate or contributing cause of an accident where it results by reason of one party being on the wrong side of the road: Wilson Freight Forwarding Co., Inc. v. Seal, 367 Pa. 18, 79 A. 2d 648 (1951); Collichio v. Williams, 311 Pa. 553, 166 Atl. 857 (1933); Bloom v. Bailey, 292 Pa. 348, 141 Atl. 150 (1928); Flanigan v. McLean, 267 Pa. 553, 110 Atl. 370 (1920); Stubbs v. Edwards, 260 Pa. 75, 103 Atl. 511 (1918). Hence, the liability of defendant is not dependent upon whether the automobile was moving or parked at the time of the accident. That issue is not material to the cause of the accident alleged in the complaint because in the instant case the accident was proximately caused by the automobile [265]*265being on the wrong side of the road by reason of defendant’s negligence: Perciavelle v. Smith, 434 Pa. 86, 252 A. 2d 702 (1969); Slawson v. C. A. B. Y. Transportation Company, 425 Pa. 489, 229 A. 2d 888 (1967). One who avers more than he can prove is not on that account to be defeated, provided he can prove enough to show himself entitled to recover: Stegmaier v. Keystone Coal Company, 225 Pa. 221, 74 Atl. 58 (1909); Commonwealth ex rel. Citizens National Bank v. Camp, 258 Pa. 548, 102 Atl. 205 (1917); Nelson v. Damus Bros. Co., 340 Pa. 49, 16 Atl. 2d 18 (1940). The rule which requires proof in support of the allegations of a party’s pleadings is confined to proof of allegations material to a cause of action alleged in the complaint.

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60 Pa. D. & C.2d 260, 1973 Pa. Dist. & Cnty. Dec. LEXIS 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heckathorne-v-lutton-pactcompllawren-1973.