McLaughlin, Forman and Ganey, Circuit Judges.
At approximately 11:15 a.m. on June 30, 1963, plaintiffs were injured, two of them seriously, when the passenger car in which they were traveling collided with defendant's flat-bedded truck on Route 879, a winding country road bordering the bank of the West Branch of the Susquehanna River. It was a two-way blacktop highway, the main traveled portion of which was eighteen feet wide; the center was not marked by a line. Its edges were in a jagged condition, reducing the most traveled portion of the road to about sixteen feet in width. The point of collision was about five and one-half miles northeast of Clearfield in Goshin Township, Clearfield County, Pennsylvania. Immediately prior to the collision, plaintiffs were traveling in a southwesterly direction, while the truck, carrying two tons of baled hay, forming a load over six feet high, from a farm one mile southwest of Carensville, to Frenchville, was moving in the opposite direction. Sergeant Andrew F. Zavatsky, a Pennsylvania State Trooper, testified that the width of the truck bed, by actual measurement, was three inches short of eight feet, the legal maximum dimension.
The question of liability in the diversity action, in which plaintiffs demanded a jury trial, depended on which of the vehicles extended over the center of the highway at the time of collision.*fn1 There were no eyewitnesses to the accident other than the occupants of the two vehicles. The jury's answers to special interrogatories reveal that defendant was guilty of negligence which was the proximate cause of the injuries and damages sustained by plaintiffs, and that the third-party defendant, the operator of the passenger car in which plaintiffs were traveling, was not. The District Court denied defendant's motion for a new trial.*fn2 Although defendant has mistakenly appealed from the order denying a new trial, we consider its appeal as if it were from the final judgment. See Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962); Cromling v. Pittsburgh and L.E.R. Co., 327 F.2d 142, 144, n. 1 (C.A.3, 1963).
Defendant's first point is that the trial court erred in allowing the recorded testimony of a witness, taken out of the hearing of the jury, to be later read into evidence before the jury for the purpose of impeaching its witness, George J. Lash, the driver of the truck. It contends that such evidence was about a collateral matter, and its admission was highly improper and extremely prejudicial to its case, requiring the granting of a new trial.
Prior to testifying on their own behalf, plaintiffs called as a witness in their side of the case one Kenneth Billotte, an inhabitant of Frenchville, a town 20 miles northeast of Clearfield. He testified that while returning by automobile from Clearfield he came upon the scene of the accident about an hour after the collision. In response to a question whether he had on his trip to Clearfield that day observed the truck before the time of the accident, he stated that about a quarter of a mile south of the point of collision it crowded him off the road. Defendant's objection to this answer was sustained. Although the trial court gave no reason at that time it later said that its ruling was based on the fact that the encounter was too remote from the scene of the accident to have any bearing on the collision, basing its ruling thereon on the distance the truck was away from the accident on another part of the road, but not sustaining it as to the width of the truck. Plaintiffs' counsel questioned Billotte about the position of the two vehicles on the highway after the collision and then requested a sidebar conference. He informed the court that he wished to learn from Billotte, among other things, whether he was crowded off the road because of the manner in which the truck was loaded. The court explained that it was not limiting plaintiffs with respect to any testimony that may show that physically the truck was too wide to occupy less than half of the road. After some discussion, the court made the following suggestion: "Let's do this. Let's hear what the witness has to say out of the hearing of the jury." In response, counsel for defendant stated: "All right. I have no objection to that." The court thereupon recessed the jury for a short time, and Billotte was further examined out of their presence as follows:
Q. Well, what I am getting at, was the truck itself over the center line or was the truck just too wide for this road?
A. Well, it could be a little bit of both.
Q. That is your opinion? I mean, that is your recollection that it was both?
Q. He was both on your side of the road and the truck was too wide also?
Let me ask him just a couple of questions.
Cross-Examination by Mr. Bebenek:
Q. You say this happened somewhere near a bridge?
A. Right near the side of the bridge.
Q. Is that a real sharp hairpin turn? That is, when you come down the hill you make a sharp hairpin turn and go up the hill between Clearfield and the point of the accident?
Q. Is that where that happened?
A. Right where that bridge is before you go ...