Epitomized Opinion

First Publication of this Opinion

This action was brought in the Mahoning Common Pleas by Louis Rizzo against John Bernardo and John Handzush.

Ruzzo was standing on the southwest corner of two intersecting streets in Youngstown when defendant Handzush, operating a motorcycle westerly on one of the streets, collided with defendant Bernardo’s automobile, which was proceeding south on the other street. The motorcycle was deflected in a southerly direction and ran into the sidewalk, striking and injuring plaintiff, who brought this action in the Common Pleas, alleging negligence in the conduct of each defendant. At the trial plaintiff introduced the testimony of one K. that she too was standing on the sidewalk near plaintiff and was struck by the motorcycle of Handzush. K. testified that she did not see the collision and did not see the motorcycle until it struck her. On cross-examination by Handzush she admitted that she had brought an action against Bernardo.

Her attorney was then placed on the stand by Handzush and K.’s petition was then offered in evidence and, over defendant Bernardo’s objection, admitted by the court as impeaching the testimony of K. as to what she knew of the collision. Verdict was rendered against Bernardo, who brought error proceedings in this court. Held:

The admission of the contents of her petition in K.’s suit against Bernardo was error because K.’-s attention was not called on the stand to any statement she had made in her petition and such foundation must be laid before any impeaching testimony can be introduced (20 O. S. 87), and because, furthermore, the contents of a petition do not constitute impeaching testimony, since the facts set forth therein are not confined to the personal knowledge of the party plaintiff. Judgment reversed.