Levant v. Leonard Wasserman Co.

Dissenting Opinion by

Hoeeman, J.:

This negligence case arose from an accident which occurred in appellee’s store. Appellant was shopping *117in the store and reached into a cart to more closely examine some merchandise. She alleged that the cart, which had been placed too close to a step which divided two sections of the store, moved and toppled down the step. As a result, appellant also fell off the step to the floor.

Appellant sustained a fractured hip from the incident. She was forced to undergo an extended period of recuperation, and claims some permanent residual effects from the injury. She expended approximately $2000 for medical expenses.

The matter was tried before a jury, which returned a verdict of $2,500 for appellant. Appellant filed a motion for a new trial based upon the inadequacy of the verdict, and that the court erred in permitting appellee to cross-examine appellant in regard to a prior accident.

At trial appellant testified concerning her accident which was caused by appellee’s alleged negligence. Appellee’s defense was primarily predicated upon appellant’s contributory negligence in falling down the step. On cross-examination appellant admitted that she had suffered another accident three months before the fall involved in the instant case. Over continuing objections appellee established that the first fall had resulted from appellant’s slipping on the basement steps of her apartment house.

It is a well established rule of evidence that “the commission of the act charged cannot be proved by showing a like act to have been committed by the same person .... Where there is neither connection nor relation between prior acts of negligence and subsequent conduct, evidence of the former is not relevant to prove the latter to be negligence.” Commonwealth v. Etzel, 370 Pa. 253, 257-8, 86 A. 2d 64, 66 (1952). “Evidence *118of general reputation of a person for carelessness is inadmissible to prove negligence on a particular occasion, since a person may have a very bad reputation and yet have discharged his duties properly on that occasion.” Jamison v. Ardes, 408 Pa. 188, 194, 182 A. 2d 497, 499 (1962). “The same rule applies where the defense is that the injury was caused by plaintiffs own negligence.” Baker v. Irish, 172 Pa. 528, 532, 33 A. 558, 559 (1896). Wyatt v. Russell, 308 Pa. 366, 162 A. 256 (1932).

In its opinion the lower court justified the admissibility of evidence of a prior accident by noting that in her suit for damages arising from the first fall appellant had alleged “bruises and contusions of the body”, which she was also claiming in the present case. Thus, the existence of, and injuries resulting from, the first fall would be relevant for the jury to consider in determining whether some of appellant’s present ailments were a result of her first injury.

Although evidence of the first accident was permissible on the restricted basis of relation to damages, the court below allowed the cross-examination to be carried too far. The fact that both appellant’s accidents had involved falls down stairs was irrelevant to the jury’s determination of to what extent her present ailments were a result of the second accident. Appellant’s carelessness on a prior occasion has no bearing on how she performed during the incident at issue. The only purpose for which this evidence could be used would be the unfairly prejudicial one of convincing the jury that appellant was prone to accidents on stairs.

Since prejudicial evidence was improperly introduced, I would reverse the judgment of the court below and remand for a new trial.

Spaulding, J., joins in this dissenting opinion.