McGoldrick v. Pennsylvania Railroad

241 A.2d 90, 430 Pa. 597, 1968 Pa. LEXIS 750

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1968
• Docket: Appeal, 261
• Status: Published

Opinions

Opinion by

Mr. Justice Eagen,

In this action to recover damages for personal injuries allegedly caused by the- negligence of employees of the defendant, the jury returned a verdict for the defendant. After plaintiff’s motion for a new trial was dimissed, judgment was entered on the verdict. This appeal followed.

The injuries resulted from a collision between an automobile owned by the plaintiff, in which he and four friends were riding, and a Diesel engine operated by employees of the defendant. Plaintiff’s automobile at the time was traveling north on Delaware Avenue in the city of Philadelphia and the defendant’s engine was located on a lead track extending across Delaware Avenue from Pier 98 south to tracks on the westerly side of Delaware Avenue. As a result of the collision, plaintiff suffered severe personal injuries and a loss of memory as to all circumstances and happenings immediately prior to and at the time of the accident.

Before the accident, plaintiff and his group of friends had an outing or picnic in an area on the banks of the Delaware River in South Philadelphia. At trial one of those in attendance testified for the plaintiff during direct examination that he did not see any whisky at the picnic, but did see “about two bottles of beer.” On cross-examination plaintiff himself admitted having consumed about one-third of a quart of beer while at the picnic. There was no other evidence that plaintiff personally consumed any intoxicants prior to the accident or suffered from any degree of intoxication.

For the purpose of impeaching the witness who testified about the absence of intoxicants at the picnic, the trial court, over objection, permitted a qualified pathologist to testify that he performed an autopsy on the body of one of the individuals riding in plaintiff’s automobile, who had been killed in the accident;¹ that the percentage of alcohol in this decedent’s blood indicated he had consumed the equivalent of 7-9 ounces of 100-proof whisky, or 7-9 bottles of beer; that these findings were confirmed by an urinalysis and an examination of the stomach contents; and that the last mentioned examination, in itself, showed this decedent had been drinking intoxicants within an hour or two of the time of his death.

It is a well recognized principle of law that a witness may not be contradicted on “collateral” matters. Zubrod v. Kuhn, 357 Pa. 200, 53 A. 2d 604 (1947). As we stated in Commonwealth v. Petrillo, 341 Pa. 209, 223, 19 A. 2d 288, 295 (1941): “No witness can be contradicted on everything he testified to in order to ‘test his credibility.’ The pivotal issues in a trial cannot be ‘sidetracked’ for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial.” Contradicting evidence is “collateral” if it may not be admitted at trial for any purpose independent of the contradiction. Commonwealth v. Petrillo, supra at 224, 19 A. 2d at 295; Commonwealth v. Neill, 362 Pa. 507, 521, 67 A. 2d 276, 282 (1949) (concurring opinion); 3 Wigmore, Evidence, §1003 (3d ed. 1940). Evidence that one of the deceased passengers in plaintiff’s automobile had been drinking heavily before the accident was clearly inadmissible apart from the contradiction. See Wentworth v. Doliner, 399 Pa. 356, 160 A. 2d 562 (1960). The evidence introduced during plaintiff’s case in chief indicating that there had been little intoxicants at the picnic also was inadmissible unless and until evidence of drinking on the part of the plaintiff sufficient to raise the issue of contributory negligence had been introduced.² Therefore, since the contradiction concerned a collateral matter, it should have been excluded.

The lower court ruled, however, that since the question of the presence of intoxicants at the picnic was introduced on direct examination, the rule proscribing contradiction on collateral matters does not apply. With this we cannot agree. While dictum improvidently employed in Bruno v. Brown, 414 Pa. 361, 200 A. 2d 405 (1964), lends support to the position that contradiction is permissible on collateral matters first introduced on direct examination, a scholarly reading of the opinion clearly reveals that the decisional ruling in Bruno was that the evidence there involved was not directed to a collateral matter. This is why it was admissible. The decision in Bruno in no way rested on the exception advocated by the defendant and accepted by the lower court. Nor are we aware of any appellate decision in Pennsylvania in which such an exception has been recognized. Moreover, highly respected authority strongly disapproves of such an exception. 3 Wigmore, Evidence, §1007 (3d ed. 1940). Therefore the general rule prohibiting the contradiction of a witness on collateral matters should have been applied.

Although application of the rule prohibiting contradiction on collateral matters normally should be left to the discretion of the trial court, 3 Wigmore, Evidence, §1003 at pp. 659-60 (3d ed. 1940), where the contradiction concerns a matter which is collateral because it is unreasonably prejudicial to one of the parties, the trial court abuses its discretion by permitting the contradiction. That is the case here. The evidence of heavy drinking by one of the passengers in plaintiff’s automobile unreasonably prejudiced plaintiff and the trial court’s instruction to the jury that the evidence was not to be considered as proof that the plaintiff himself had been drinking intoxicants prior to the accident was insufficient to overcome this prejudice. See Wentworth v. Doliner, supra.

Finally, the defendant contends that any error in the admission of evidence should not be ground for reversal because the plaintiff should have been found contributorily negligent as a matter of law. We disagree. Even assuming that the operator of the automobile was contributorily negligent as a matter of law, whether or not the plaintiff was in fact the operator was a question for the jury to determine under the proof presented.

Reversed and remanded for a new trial.

1 Two occupants of the automobile were killed, in the accident.

2 Although the trial court normally has discretion to admit out of order evidence in rebuttal of an anticipated defense, see Ebensburg Trust Co. v. Pike, 296 Pa. 462, 146 A. 122 (1929), this discretion is abused if it unduly prejudices one of the parties. See Helser v. McGrath, 52 Pa. 531 (1866). Since we rule that the defendant cannot contradict plaintiff’s witness who said that there was little or no drinking at the picnic, it would be unduly prejudicial to the defendant to permit plaintiff to anticipate contributory negligence as a defense.