21 A.2d 492 | Pa. Super. Ct. | 1941
Argued April 30, 1941. On October 9, 1937, Harry Layton was driving his automobile (coupe) in a westerly direction along the William Penn Highway in Juniata County. With him were Wilma Drake and Herbert Ransom. At the same time S.E. Emhoff was driving his automobile (sedan) in an easterly direction along the same highway. The two automobiles collided with each other near the eastern boundary line of Thompsontown Borough. The three occupants of the Layton automobile brought actions in trespass against Emhoff to recover damages.
The three actions were tried together, and a separate verdict was rendered for each plaintiff. Defendant having moved unsuccessfully for a new trial in each case, and for judgment n.o.v. in the Layton case, these appeals followed.
As the three trespass actions arose from the same accident, and were tried together in the court below, they will be disposed of in a single opinion.
The assignments of error upon which the argument *501 for new trials is based will be considered first. Assignments Nos. 1 to 13, inclusive, apply to each of the three cases. The first 12 assignments are directed to the charge of the court. The 13th assignment relates to the dismissal of defendant's motion for a new trial. Assignment No. 15 complains of a ruling on evidence, and applies to the Layton case only.
Under the first assignment it is argued that the trial judge erred when, in his charge to the jury, he characterized the testimony of Robert Swigart, one of appellant's witnesses, as "of little value." The record reveals that what the trial judge actually said was: "If he was an eye witness it was at such a distance that his testimony with respect to the immediatecollision is of little value." With the restriction indicated by the italics, this was not an improper observation, for the witness had testified: "Well, the only thing I saw when I left Thompsontown was a cloud of dust, and after that I saw two cars together."
The eighth and ninth assignments impute error to that part of the charge wherein the trial judge stated to the jury that the testimony of Albert Bentz and Henry Koons, two apparently disinterested witnesses for appellant, had been criticized by counsel for appellees. The trial judge summarized the criticism, and told the jury that "in view of this criticism it will be your duty to consider this testimony in the light of other testimony in the case, namely, that on the part of the plaintiffs and all the witnesses for the defendant himself." In this there was no error.
The seventh assignment violates rule No. 22 of this court in that it covers more than one point, and raises more than one question. One part of it relates to a misquotation of testimony, and the other to comment thereon by the trial judge. It is therefore defective (Davis et al., for use, v. Fireman's FundIns. Co. of San Francisco,
The eleventh assignment of error relates to the trial judge's remark in his charge that "most of these bills of which you have heard testimony have not been paid by these parties yet, apparently they were unable to pay them, but they have incurred the obligation for them." While the reference to appellees' inability to pay these bills might have been better left unsaid, still, in view of the entire record in this case, there was ample evidence to justify the verdicts which were modest, and it is not apparent that the jury was inflamed or affected by the statement quoted. See Cook v. Donaldson et al.,
The second, third, fourth, fifth, sixth, and tenth assignments complain of misquotations of testimony in the charge. It is true, and appellees concede, that the trial judge made some incorrect statements in his review of the testimony, and that appellant took specific exceptions thereto. This, however, was not sufficient. As was said in Senita v. Marcy,
In the twelfth assignment it is generally alleged that *504
the charge as a whole was biased in favor of appellees, and prejudicial to appellant in that it had a tendency to be misleading, emphasized the appellees' case, and belittled the witnesses for appellant. In the argument reference is made to many of the matters embraced in assignments discussed heretofore as well as to other statements in the charge. At the conclusion of his charge the trial judge said: "Is there any correction, Gentlemen, or suggestion for further charge?" Thereupon counsel for appellant excepted to the refusal of points and to the charge generally, and excepted particularly to certain portions of the charge where the trial judge had given his recollection of the testimony of various witnesses, and which have been made the subject of assignments which we have previously discussed. No purpose would be served by reviewing all the criticisms enumerated, and it is sufficient to say that a careful reading of the entire charge in the light of the authorities cited by appellant's counsel does not convict the trial judge of the error complained of in the assignment. See Giannone v. Reale,
The admission of the testimony of the witness David Saussman as to the value of appellee Layton's automobile prior to the accident is the subject of the fifteenth assignment of error. The general qualifications of this witness, a dealer in automobiles, as an expert do not seem to have been questioned at the trial. No objection was made to his testimony on that ground. Admittedly, *505 he had never seen Layton's automobile before the accident, but it was removed to his place of business by his towing truck thereafter. Saussman stated that from his inspection of the damaged vehicle he was able to visualize its condition before the accident; that its value at that time was $500, and thereafter $35. While he admitted on cross-examination that he had not inspected specific parts of the automobile, this went to the weight of his testimony, but it did not render his testimony inadmissible. Furthermore, Layton had testified that he paid $800 for the automobile, a 1936 six-cylinder Oldsmobile coupe, about a year before the accident which occurred on October 9, 1937; that it was in good condition; and that it was practically new when he bought it, as the seller had had it only a month when Layton purchased it. It was also shown that Layton had driven the automobile from Newark, N.J., to the scene of the accident in approximately eight and one-half hours, which in itself was some evidence of its mechanical condition. The trial judge directed the jury's attention to Saussman's failure to examine various essential parts of the automobile, and went on to say: "You will determine, therefore, to what extent you feel you can rely upon this estimate. . . . . ."
As stated in their brief, the complaint of appellant's counsel is "that the value of the plaintiff's automobile immediately prior to the accident was not fixed by any competent testimony." In Wilhelm v. Uttenweiler,
After evidence had been given of the contents and value of certain trunks alleged to have been converted by the defendant, the testimony of experts to prove the value of articles similar to those described, although never seen by such experts, was held admissible in Mish v. Wood et ux.,
In Rodgers v. Studebaker Sales Co.,
The gist of appellant's argument seems to be that because the witness had not seen the Layton automobile before the accident his testimony was inadmissible. In the nature of things, a plaintiff would be rarely so fortunate as to have had his automobile inspected and appraised just before an accident. The rule advocated by appellant would debar a plaintiff from proving such damage in most cases. Courts are not required to be so solicitous of a wrongdoer.
The language of Mr. Justice SUTHERLAND, speaking for the United States Supreme Court, in Story Parchment Co. v. PatersonParchment Paper Co. et al.,
The fourteenth assignment complains of the refusal of the court below to enter judgment for appellant n.o.v. in the Layton case. The proposition advanced by appellant is that Layton was guilty of contributory negligence. According to Layton's testimony, and he was the only witness in his own behalf, he was driving west on route No. 22, a two-lane highway, approaching Thompsontown. Appellant, approaching from the opposite direction behind a truck, pulled over into the westbound lane to pass it. Layton attempted to avoid a collision by turning to his right onto the berm, but the right front wheel of his automobile struck an abutment, deflecting it to the left, and skidded forward at an angle with the rear wheels on the berm and the front wheels in the westbound traffic lane. It continued in this position until the collision occurred, after which both automobiles headed south and came to rest side by side on the south side of the highway and at right angles thereto.
Appellant's argument is based on discrepancies in *508
Layton's testimony as to the distances between his own automobile and appellant's at various times before the accident, and especially when appellant pulled out from behind the truck. In the first place, the argument ignores the rule, reiterated so frequently, that in reviewing the denial of a motion for judgment n.o.v. the testimony must be read in the light most advantageous to the plaintiff who has the verdict, all conflicts must be resolved in his favor, and he must be given the benefit of every fact and inference of fact pertaining to the issues involved.Burckhalter et ux. v. F.W. Woolworth Co.,
All the assignments of error are overruled.
Judgment in each appeal is affirmed.