stating that published authorities cannot be introduced in evidence to prove truth of matters asserted therein
How later courts described this case
- stating that published authorities cannot be introduced in evidence to prove truth of matters asserted therein
- remanding for a new trial where the trial court allowed a witness to offer a speculative opinion
Written by the judges who cited it.
The opinion
BECK, Judge,
concurring:
I join in the opinion of the majority, except for the analysis of the opinion testimony of Patricia Morgan, a lay witness.
Morgan testified that she habitually drives at the speed limit and, consequently, she assumed that she was driving at the speed limit of 25 miles per hour at the time of the accident. This testimony was sufficient to show Morgan’s speed. A witness who habitually drives at the speed limit should be permitted to assume that she was driving at the speed limit at the time of the incident. “The probative *218 value of a person’s habit or custom, as showing what was done on a particular occasion, is not open to doubt____” Baldridge v. Matthews, 378 Pa. 566 , 106 A.2d 809 (1954). While driving at that speed, she observed DeHass’ vehicle traveling in the opposite direction, before and at the moment of impact. It is reasonable that she could testify that he was driving faster than she was and therefore faster than the speed limit. Her opinion as to DeHass’ relative speed was rationally based on her perception and clearly helpful to the determination of the facts in issue. See generally, Lewis v. Mellor, 259 Pa.Super. 509 , 393 A.2d 941 (1978); Packel, Pennsylvania Evidence § 701 (1987).
Morgan’s testimony was contradictory. She also testified that she was not sure if she had enough time to observe DeHass’ vehicle before the accident and that she was slowed down because traffic in her direction was going slowly. These contradictions go to credibility, not admissibility. I would not find that the trial court’s decision to admit Morgan’s testimony was erroneous.
In holding that Morgan’s testimony was speculative and inadmissible, the majority relies upon the general rule that, “while lay witnesses are permitted to express estimates of vehicle speed in numerical terms, terms such as ‘fast,’ ‘slow’ or ‘excessive’ and the like have been found to be conclusory in nature as well as lacking in evidentiary value.” Starner v. Wirth, 440 Pa. 177, 181 , 269 A.2d 674, 676 (1970). However this general proposition is not without exceptions. In support of this proposition, Stamer cites Holton v. Gibson, 402 Pa. 37 , 166 A.2d 4 (1960), which explains the rationale of the general proposition that has since been cited without reference to its exceptions, e.g. Stamer, supra; Catina v. Maree, 498 Pa. 443 , 447 A.2d 228 (1982). In Holton , the court distinguished between improper references by a witness to speed as ‘fast’ because of their conclusory nature, and proper references of relative speed. Holton held that when a witness observed an oncoming car traveling at one speed and then made another observation of the vehicle as it approached, the witness’ testimony that the automobile *219 was traveling at an increased speed is testimony of a factual nature and admissible. I would find the rationale in Holton applicable. In Morgan’s situation, her opinion was based on her observation of DeHaas’ speed relative to her own, which observation was in turn based on her habit of traveling at the speed limit.
Moreover, if the use of the actual term, “fast” should not be permitted under these circumstances, it would be harmless error. Once the witness could testify that she was traveling at the speed limit and that DeHaas exceeded her speed, there is only one reasonable conclusion a jury could reach if it found her testimony credible.