*1 365 What this Court said Snyder 368 Pa. Estate, 393, 84 A. 2d 318, peculiarly “Where appropriate here: an auditing judge chancellor who sees and hears witnesses finds facts 'which have competent and ade evidence quate them support are these findings approved .the court banc, will not be re they versed on appeal: Borden 358 Pa. 2d Trust, 56 A. 138, 108; Grenet’s 332 Pa. 2 Estate, A. 2d Barrett 111, 707; v. 367 Pa. A. Heiner, 2d 729.” 510,
Decree affirmed. Each party shall their pay own (respective) costs.
Byers Vargo, Appellant. v. March 1957. Before Argued J., Bell, 26, C. Jones, Jones JJ. Chidsey, Musmanno, Arnold, Cohen, *2 appellant. George Meyer, Y. for Harrington, him P. Dennis James McArdle, G. appellee. for May 1957: Mr. Justice by 27, Opinion Bell, trespass appeals for in
These of actions arose out plaintiff’s resulting from a collision death decedent Vargo by on automobile driven between Chevrolet long Bridge Allegheny Coun- in Versailles-Boston opposite ty, in direction and a driven by de- Plaintiff’s the additional defendant Moldovan. passenger motor- on the back cedent was seat Vargo cycle. jury against and The returned a verdict plaintiff Wrongful action in in favor of in the Death in the amount of and in the action Survival $2500, amount of The also returned verdict $7500. additional favor defendant. Moldovan, Vargo contending filed a motion for a new trial, against clearly weight verdicts that the were The credible evidence. Court refused the mo- below judgment on and entered a each verdict. From tion judgments Vargo appeals. has taken these these September accident on The occurred 22, at 1952, p.m., 4 o’clock near middle of the about Versailles- Bridge. day dry. ramp clear was Boston
367 on the upgrade length was feet bridge itself bridge length. was 780 feet marked
There were three lane lanes of each traffic, his broken white lines. accompanied Yargo, driv- his her wife, stepdaughter child, infant from on the ing going Chevrolet car north bridge tractor- Boston A loaded end to end. the Versailles at about proceeding about 40 feet in trailer, length, lane close miles an hour in (correct) the right-hand end toward its the Boston from right curb, going hour miles an Versailles. about 25 Vargo, traveling in the tractor-trailer, same direction as the going at pulled pass. bridge into the center lane to On from the time there traffic proceeding was no auto- Boston end to the Versailles end except Vargo’s *3 mobile and and there was no traf- the tractor-trailer, fic direction Moldovan’s proceeding except the other struck ear was the motorcycle. Vargo’s motorcycle by its to the left of its front wheel and headlight, front It was then struck instantly axle broken. being Both the tractor-trailer on the men on the motor- right. and the were cata- cycle, motorcycle itself, apparently pulted into the air continued some distance past and men on of collision. Both the point the motorcycle plaintiff’s were decedent badly injured, dying shortly accident. after the Whether collision occurred in lane or in the left the center lane —the farthest from it side—and whose fault was, were crucial Vargo’s questions at the trial. are will hereinafter more facts, appear, fully Moldovan recovered unusual. sued and Vargo
very was affirmed Court against him, verdict which appeal judgment no from the en Moldovan took banc. tes- this verdict. Moldovan on duly which was entered never saw the tractor-trailer each trial that he tified at car until of Vargo’s although the moment impact, there was to nothing obstruct his view. testified that about
Vargo driving Moldovan 50 miles an that into hour; pulled after he (Vargo) center lane in ob- pass order he tractor-trailer, .the served the in the di- motorcycle opposite approaching rection in right-hand its as he started that lane; angle his car into back his lane to right-hand complete his the motor- passing saw tractor-trailer, (Moldovan) turn head to cycle driver his of right at and the same instant motorcycle motorcycle left into the center swung lane about feet from away crashed Vargo quickly into car. Vargo’s Mrs. of stepdaughter corroborated Lodor, Vargo, Vargo’s he was at no time in testimony the left lane and that “The driver [Molodovan] turned his his head to as he did so the right* cycle came into the middle lane and collision occurred.”
Vincent the driver Benedetti, tractor-trailer, corroborated in all Vargo testimony particu- larly collision occurred in the middle lane. Benedetti’s seat on the tractor-trailer was so high it him see enabled over the top automobiles and “he had noticed driver turn his head cycle and then come into the lane just center before the collision”.
James Chief Bernick, interviewed Police, Moldo- after the van accident very shortly with- testified, *4 out contradiction (by Moldovan) Moldovan said cap “he for turned his head grabbed momen- behind ‘Look and the tarily boy yelled, out, you are go- it was too late do ing crash’, anything about of all testimony it.” This corroborated of Vargo’s witnesses.
* throughout, ours. Italics Biggs produced Baymond Plaintiff two witnesses— approximate- Biggs waiting and Merle Brown. for was ly intending an hour at the Boston end of the though to hitchhike to Buena he stand- even Vista, ing wrong on the a lift. He side of the road to secure approximately away col- 900 feet from where swung Vargo’s lision occurred. He testified that car wrong into his lane of traffic. did not see or He know although any that there had been collision thereafter he ran to the accident. He knew Moldovan and although hospital but decedent, he went to the give appear he did them, not his name as a witness inquest; any- at the coroner’s nor did ever he talk to years one about the accident for several thereafter. He Vargo testified that the car was in the left-hand lane got when he to the scene of the accident. His testi- mony was filled with conflicts and con- contradictions, fusion.
Merle Brown was an inmate of the Western State Penitentiary, serving burglary. two sentences for He place was near the where the accident occurred. He Vargo’s testified that car was in its center lane and all at once it finally swerved sidewise and slid and girder bridge. struck the thought of He the reason for the Chevy collision Avasthat the must have cut too short in front of the tractor-trailer and must have been by struck testify the tractor. He did not at the coro- inquest although ner’s family saw of frequently hospital decedent at the and at their home, testify he did Vargo at the trial v. Moldovan. testimony, important His matters, was contradicted by every other Avitness.
Vargo proved stepdaughter, himself and his by the Chief of Police, and the driver of the tractor- stopped that his trailer, car aa^s in the middle lane *5 370 traffic allow
after the and that order to collision, the police from moved Ms car to cross the al- partially in order middle lane the left lane into proceed. traffic to low
Yargo only the verdict not contends that weight against evi- that of the but evidence, plaintiff’s trial dence of was incredible. witnesses testimony, “Bigg’s Judge refused trial because new although respects, contradictory so is not in certain as to incredible warrant a new trial”. Judge grants a or refuses
When a trial trial new against grant a new trial because verdict was clearly weight settled of law evidence, appellate there an not unless that Court will reverse an is a clear abuse discretion or error of law which of necessarily grant (or refusal) of a new controlled the trial: Pa. A. 2d 375; 388 131 v. 592, Clewell Pummer, 120 381 Pa. A. 2d v. Edelson 220, 300; Mozino Canuso, 111 2d 380 Pa. A. Wilt v. Blazier, v. 426, 455; Ochroch, Waybright, 114 Pa. 2d 367 111; A. Foster 143, v. 80 A. 2d Pa. 801. 615,
Considering (a) only we evidence which (b) hereinabove but further im- summarized, portant jury fact that favor returned verdict in clearly negligence guilty Moldovan when he was of negligence, (c) contributory fact or of the further negli- guilty had found Moldovan to be very gence Yargo in this in the Mol- accident suit of v. although fact was ac- inadmissiMe in the dovan— trial instant case—we are convinced tual these unusual facts and under circumstances the lower guilty a manifest abuse of discretion Court granted justice. trial must be a new interest of Judgment granted. reversed new trial *6 Dissenting Opinion Mr. Musmanno : Justice regard granting What is the rule of a to the personal injuries ground new trial in a on the case against weight the verdict is the the In a of evidence? today decision filed v. the case of Kiser Schlosser, Opinion says: 389 Pa. the writer “The determina 131, against weight tion of whether a verdict of is the the granted, a so that evidence, new trial should be rests primarily within the discretion the trial eourt, of palpa its action will not be is disturbed unless there a ble abuse of that a discretion as determined from care ful review of the entire clear error of record, law which controlled the outcome.”* Judge granted
In that the Trial trial on case, new ground money the that the verdicts returned in favor of plaintiffs against weight were of the evidence, granting and this Court affirmed the In of a new trial. Judge, money this case Trial with a verdict favor plaintiff, a new trial because he believed refused against weight that the verdict was not of the evi- ordering and this Court dence, a new trial. In reversed, this state of what affairs, becomes of the rule that the question granted as to whether a new trial should be (on subject weight primarily evidence) rests within the discretion the trial court? In the Kiser Judge case the Trial said that defendant should prove opportunity jury wrong, have another Judge this affirmed. In this Court case the Trial. said opportu- the defendant should not have another prove nity jury wrong, and this reverses. Court consistency? day. is Where All in one happen occasionally Of it can course, it does happen jury may may that a it misconceive the err, may Judge’s evidence, it misunderstand the instruc- * throughout, mine. Italics improperly may extraneous be influenced it
tions, only in happens, not new trial factors. When that preserve in- imperative. But if we are but order, through the by jury as has come down trial it violate appellate lay approval, courts juridical and centuries of in- upset merely if the because, verdicts should sitting jury in the had been members thereof dividual might they conclusion. a different box have reached part proof of a misconduct on of error or sunlight coalpile bright be as a should as obvious appellate brand the verdict court should an before Judge improper, especially sat with the Trial who *7 when ap- throughout and and saw the who the trial, solemnly praised ain written declares the witnesses, Opinion is in with verdict accordance that the rendered weight the the of evidence. responsibil- appellate grave
An a court undertakes Judge ity by the Trial in the face of a decision when, proper just, that the declares that the verdict is and improper unjust. is and does the verdict How discharge responsibility in this its in the case at bar plaintiff’s says respect? It that the witnesses were two emphasizing and that one was a hitch-hiker unreliable, penitentiary convict. the other at the time of the trial a they When an accident -witnesses are who the occurs, previ- principals not a of an accident do are. permit them to interro- ous dress rehearsal which will past, potential gate inquiring their as to the witnesses, reputations, the of their like director and, morals, dress, impeccable play, in a discard those who are deportment. speech, A thousand chance factors intermingle, produce interplay, and concatenate to an stationing given witnesses. a accident, and the of At standing Harry John X is here and Z is walk- moment, picture ing from his own little world the into when crystallizes agent catalytic Fate the forces of Nature, foibles, movements, and the the energies engines, phenomenon into of human beings weaknesses characters as the five fateful Just called an accident. Luis Rey, of San Bridge in story, Thornton Wilder’s kismetic moment at appeared bridge on the the gulf into the travelers bridge crashed, precipitating Brown happen and Merle so did Riggs below, Raymond September on 22, Bridge Versailles-Boston upon quarreled moment motor vehicles at the when two 1952, of their the violence in the middle of that decedent killed D. the plaintiff’s wrath Carl Byers, us. case before most favorable to the the record Reading light as plaintiff are to do with required we plaintiff, in the the accident happened an we find appellee, manner. On afternoon of September 22, following of Allan man the name 1952, young Moldovan, speed per his at a about miles driving hour direction over Versailles- southwardly Boston in his hand lane of the three traffic Bridge right on that lanes thoroughfare, 19-year-old friend, D. on this Carl the seat behind him. At Byers, riding time same Steve Chevrolet automo- Vargo driving bile on the in the bridge opposite direction, *8 in his hand lane. As auto- northwardly, right Vargo’s approached mobile the middle of the he moved to pass center lane order tractor-trailer which had been slowly preceding him, and impeding In his blocking passage. moving the center lane, overshot with the mark, result the front Vargo of his car invaded lane reserved end for exclusively traffic and which at moving southwardly that moment and utilized occupied being Moldovan on his over to Swerving Moldovan’s lane motorcycle. Vargo’s with such car struck violence that its and were hurled into the passenger driver air, falling pavement consequent injuries to to the serious Byers’ fatal. both, Byers en- administratrix of of the estate Carl against Vargo brought suit
tered as who Moldovan an additional verdicts defendant. The returned Wrongful in the sums of in the Death Action $2500 plain- and in the Survival Action in favor of the $7500 against Vargo. tiff Moldovan exonerated of all Vargo contending blame. moved for a trial, new against weight the verdict was This evidence. Vargo ap- motion was refused the lower and Court pealed here. of this Court now reverses the deci- asserting
sion of the Trial that he abused Ms Court, refusing grant discretion a new trial. I dissent contrary, and on assert, that the Trial Court would clearly most have abused his if he discretion had granted nothing a new trial. We have here more nor question adjudication. Vargo less than of fact for insists that Moldovan left the southbound traffic lane and crossed to the over center lane to strike Ms automo- just strongly Vargo Moldovan while insists bile, (Mold- over crossed from the center lane to invade his ovan’s) motorcycle. lane and smash his The stories by Vargo absolutely told are Moldovan irreconcil- day Vargo able. From the the accident occurred, arguing respective positions, Moldovan have been their doomsday proclaiming and from now until each will be wrong. right that he was other But mundane questions of this kind do not, wait until cannot, Day Judgment good for decision. Twelve citizens, holding dispassionate inquiry, aloft lantern of have mishap, studied the locale listened to the stories participants, analyzed conflicting theories, prejudice favor, without and, bias, concluded Vargo that Moldovan was innocent fault and laden *9 happening. for the blame untoward with challenged? Why noth- There is is their conclusion burning brightly ing suggest at all to that the lantern, supplied times the oil instruction of wise is Judge, There issue. Trial failed to illuminate the slightest jury over stumbled not the intimation that the concealing hand No behind a evidence. one mutters n caprice jury for honest substituted whim On basis, then, conscientious deliberation. what argued Judge in his remiss can it be that the Trial was duty allowing On as rendered? the verdict to remain declaring ground Majority can stand in what Judge to because he refused abused discretion the new trial condemn the verdict and refused to order superfluous, unnecessary, is to and, which so so winning unjust? plaintiff, so reversing Majority
The as one for advances, reason, clearly the verdict the assertion that Moldovan “was negligence.” guilty negligence contributory or of they say The did not are the ones who saw so, Judge Trial and heard evidence. The witnesses say and heard the did not and he saw the witnesses so, pronounce appellate may An evidence. court contribu- only tory negligence all the credible evidence when points irrefutably case in that direction. There is unanimity accusing forefingers in such this case. no contributory negligence there can be no Moreover, plaintiff. chargeable to Moldovan. Moldovan not a Vargo’s negligence abundantly defendant was proved by Raymond Riggs witnesses, two disinterested credibility at and Merle whose Brown, Majority says Raymond on all fronts. tacks waiting Riggs “at the Boston end was intending though hitchhike Buena even Yista, wrong standing on the side of road to secure necessary dispel any at the I find it outset to a lift.” Riggs “intending because hitchhike idea that, *10 thumb Buena lie must been a wanderer Vista,” ing rides across the continent. The Buena Vista which in he was destined is not the Buena Vista Mexico, tiny Allegheny County, but a hamlet of 600 souls in only away bridge Riggs 4 miles from the and where Riggs lived his with wife and seven children. was a just day’s not a had drifter. He finished workman, shovelling employer, toil and his Alvin coal, Mellon, who lived had taken him in his as far Versailles, car, transport as he could end of the Boston him, point Riggs get from which intended to home either bus or a free ride.* insinuates something Riggs that there was incredible about wait ing wrong “on the side of the and that his state road,” respect proves quite ment in this some dark motive, explained by Majority. The fact of the matter purposes, Riggs wrong for his that, own was not on the point, side of the road. He stood at that which was many stopped close to a newsstand at which motorists newspapers, oppor for their so that he could have an tunity to look the motorists over and discover those driving who would be to Buena Vista and take him stop home. He testified: most of “Well, them there paper drug for the at the store like I and, I said, knowed most of them from Buena and I could Vista, see driving who was the automobile when it come toward flag If I I me. knowed them would them down.” He standing had another reason for where he did. It was a stop. He bus “That is but if I true, testified: stood standing always I I could where was catch a bus if I stop didn’t catch a ride. That is a bus there.” * population Versailles with a of 2484 and Boston with a thriv- Allegheny ing County, godfathers, 2000 are towns whose like Vista, evidently of Buena were those also enthusiastic readers of history. the atlas testimony Majority Opinion says Riggs’ was “filled and confu- conflicts contradictions, of- sion,” support of that denunciation sweeping fers purported illustrations. We have seen animadversion about side of on waiting “wrong road” lacked substance. The next barb that supposed he was 900 feet from where “approximately away collision and therefore could not have seen occurred,” much, lacks 900 feet similarly persuasiveness because *11 is not such a distance that one cannot see the movement of three motor vehicles on an ob- with no open bridge stacles It is to noted in this intervening. be further connection that never he Riggs said was 900 feet away. This was purely calculation on the of the de- part fendant’s attorney.
The third illustration submitted by Majority, intended destruction of Riggs’ would sug- testimony, to me gest that is a different rec- Majority reading ord from the one in possession. The my says that Riggs said “he did not see or know that there had been collision.” The any printed record submitted to “Q. me shows that testified: can tell Riggs Now, you if Mr. you just what this us, will, Riggs, action Chev- rolet took as it was A. passing the truck? as I Well, seen when the to the it, got Chevrolet front end of the it truck swerved over—he made a left-hand swerve over Q. into lane of the right-hand I motorcycle. see. And what A. And it happened? caught motorcycle Q. the center And motorcycle. what happened then? A. The motorcycle motorcycle spun and I around slid down road seen the two bodies air.” If that is fly up not seeing a colli- power then has lost all language sion, conveying “Q. testified further: meaning. Riggs Mr. Now, that as the Chevrolet was Riggs, you say passing truck he seemed swerve to his left; that correct? happened? when Q. A. Well, A. sir. And what Yes, caught this he over side swerved to his left-hand motorcycle? motorcycle. happened Q. to the What caught piece, motorcycle fell, A. The went a little fire.” Riggs Majority says “knew Moldovan hospital although with to the he went decedent, but appear give as a he did not name witness
them, inquest.” here is The inference at the coroner’s prior Riggs’ testimony of a influenced because friendship Byers. record flat- Moldovan and ly Majority’s the infer- assertion contradicts the Immediately the colli- after ences drawn therefrom. Riggs ran to render assistance sion to the scene pavement. injured He lying on the riders many “Q. replied as How were was asked and follows: you Q. Did know either there? A. There was two. Q. did A. sir.” them? A. sir. You not? No, No, immediately Riggs, “Q. accident after the Also: Mr. point up you you ran to the where what did do; is, you IA. did do? the accident occurred and what *12 stopped boy. Q. the was that? A. That at first Who boy, “Q. Byers I out later.” Further: was the found boy you A. that time? And who was did know that Again: “Q. at that time, I did not.” Now, No, sir, you Riggs, A. I ran Mr. after that? back what did do hoy.” Byers later it was the to where I out found attempts Riggs rogue. Majority make a to person him be a modest The record would show to who respond did fail to minded his oavu business but got mercy he the called for volunteers. When to Avhen help give every the he endeavored to locale of accident called for and assisted several firemen the situation placing Byers boy He ac- the on stretcher. even hospital companied the the stricken lad to and then, picture. faded he out of the duties ended, Samaritan
379 gave sought He his name no it. one one because no year appear or so as When, he was asked later, agreed I are witness, to do so. If reading I same see reason for its con- no record, demning Riggs’ testimony being “filled con- every conflicts and I read tradictions, confusion.” printed pages, testimony, word of his which covers singularly significant any and I found it to be free of jury, like I it contradictions, concluded that and, straightforward, and believable. clear, plaintiff, Merle for other witness has Brown, Majority’s also come before the intense fire at- of the tack on the I believe it will be verdict, but, shown anything fire has failed hit vulnerable. Merle two-story building Brown, who lived in a frame sight hap- easy bridge Versailles within of the itself, pened walking bridge to be across the on the afternoon span of the accident. As he reached the middle of the only the drama of the accident unfolded. He was to35 away point tragic episode. feet from the focal motorcycle moving He along testified to how he saw the right Vargo in its lane of how he observed traffic, leaving right crossing automobile its lane over to the center and then it lane, how swerved over to the occupied by motorcycle: lane “Q. it after Now, Vargo happened? [the car] swerved to its left what A. It came come back out across the across, center lane right and over into the hand lane right going hand lane and this south, is, motor- cycle going right going in hand lane south, right path and it come into the —the Q. automobile did. there Was a collision? A. Yes, part Q. there was. What of the automobile collided *13 part motorcycle? of the what A. The left front end of the automobile collided with the at just in front of about the back of wheel the motor- cycle.” im- “in testimony Brown’s says
The Majority wit- other every by contradicted matters was portant mat- realities represents ness.” This hardly was Brown particulars important in many because ter, even by and Moldovan, Biggs by by corroborated At defendant. for the testifying Chief of Police the contradiction if contradicted, he was any rate, consider. for the to matter time at the age who was Brown, years Merle into trouble with as a witness, got was summoned appeared at trial, following the accident and, law Penitentiary of the Western of an inmate garb The months. for 18 he had been incarcerated in which or destroyed assumes that this incarceration This his as a witness. credibility considerably damaged in prison at 18 months follow all. Although does not back of honor over the are like 18 lashes ignominy of truth. tongue not tear out the do reputation, they jail to shame led into Court between Manacled still relate what prisoner eyes may guards, as has as much one who seen with fidelity accuracy Where there paths not blundered from the of rectitude. has here, is no motive to and none been shown lie, of his be as in full can possession faculties, convict, is but a as a virtue. trustworthy paragon Memory function uninfluenced which, passion, mechanical as operates and faith- bias, prejudice, untrammeledly touch and It taste, as smell. has fully sight, hearing, not been Brown was influ- suggested anywhere other tell than what plaintiff anything enced said that it is not he was personal he knew; seeking him answering questions put Court. gain this then does Court regard him untruthful? Why after is the tribunal all, passes which jury which, full well that knew Brown a con- credibility, upon first question put him, after he had very vict. *14 I believe Brown, Ms “Mr. name and was: age given Peni- State are an at the inmate Western you presently sir,” “Yes, And he replied: is that correct?” tentiary; for in prison data he had been with the that specific burglaries. he committed two 18 months had because did imagined, well be Defendant’s it can counsel, in the jury to the to remind opportunity pass allow the jury but convict, was his summation that Brown justi- the What truth. telling still believed Brown was that because is there assumption fication then for any unrelated matter entirely Brown into trouble on a got truth desire for inherent present litigation, him branded left and that sentence him, prison a scion of Ananias? for ordering a third reason gives out in another arising
new that lawsuit trial, namely, re- sued Moldovan and of this same accident Yargo that is irrele- happened entirely in case covered. What asked at to this one. When Moldovan vant was he of this case did not sue since why Yargo trial he result of the had suffered a broken knee as a leg “I be That replied: am alive. accident, just happy I for This partial explanation is all can be a say.” may result of the other trial. But whatever may for it unjust penalize been the cause is verdict, in in case for present happened this what plaintiff If it is another case. one of ver- argued two must dicts must be it be assumed why error, is since this is this the erroneous trial one, especially free of tried error? case was well absolutely on either it side; presided able was over lawyers an experienced, extremely Judge A. Samuel Weiss, trial free judge; charge and conscientious able, no were blemishes the introduction or fault; there of evidence. The atten- jury exclusion intelligent, must all all and deliberative. Why parties, tive, all the witnesses, lawyers, another make their over the way of a trial? bridge new far as So decision of the Court this particular is case con- another so cerned, trial, demonstratedly unnecessary, fall another Bridge San Luis Rey, with sixth traveler the falling justice among itself. victims — *15 Thompson, Appellant.
Commonwealth v.