Edelson v. Ochroch, Appellant.
Supreme Court of Pennsylvania
January 4, 1955
380 Pa. 426
Argued November 17, 1954. Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Henry T. Reath, with him Richard E. McDevitt, John B. Martin and Duane, Morris & Heckscher, for appellees.
OPINION BY MR. JUSTICE BELL, January 4, 1955:
Edelson and his two sisters, who were passengers in his car, brought an action against Ochroch Transportation Company and Charles Ochroch and Albert Ochroch, individually, for damages resulting from a right-angle collision at the intersection of Ridge Avenue and Wissahickon Drive in the City of Philadelphia, in which the Ochroch car struck the Edelson car, damaging it and injuring the parties-plaintiff. The defendants Ochroch brought in as additional defendant one of the plaintiffs, Samuel Edelson, who was driving the Edelson car.
There was a direct conflict of evidence; moreover, the testimony of one or more witnesses was contradictory, and as the Court below found, unworthy of belief. The jury found a verdict in favor of the Ochroch Transportation Company and the Ochrochs individually. The jury also found that “the entire negligence lies
It will not be necessary to recite the facts; it will suffice to merely quote the following excerpts from the Per Curiam opinion of the lower Court:
“In the face of these contradictions, [by Dupree, the driver of Ochroch Transportation Company‘s truck] it is difficult to understand how the jury could find that defendant‘s driver Dupree was not negligent, that Samuel Edelson was and that the negligence of Samuel Edelson alone was the cause of the accident. Where traffic lights are controlled automatically, they do not change in so rapid a succession as in the versions of the occurrence given by Dupree. If the light was green for Edelson when he entered the intersection, he had a right to assume that Dupree would heed the traffic light against him and would not enter the intersection. Jones v. Williams, 358 Pa. 559, 562. Moreover, the evidence showed that Edelson was not relying solely on a favorable traffic light and dispensing with due care in crossing the intersection. See Lewis v. Quinn, 376 Pa. 109. On the contrary, Edelson‘s uncontradicted testimony showed that he looked up and down Ridge Avenue, observed the lights of a vehicle approaching from the west when it was 135 feet away, [and] that it appeared to be slowing down, . . . .
“While it is not the province of the court to resolve conflicts in the testimony or to usurp the function of the jury, ‘it is the duty of a trial court to pass upon the weight of the evidence and to grant or withhold a new trial accordingly‘: Hershey v. Pittsburgh and West Virginia Railway Company, 366 Pa. 158, 162.
“We are satisfied that the verdicts reached were against the weight of the evidence and that justice re-
quires a new trial. Bellettiere v. Philadelphia, 367 Pa. 638. See also Pendleton v. Philadelphia Transportation Company, 376 Pa. 598; Harris v. Ruggles Lumber Company, 376 Pa. 252; Streilein v. Vogel, 363 Pa. 379. The overwhelming weight of the evidence indicated plainly that the traffic light was in favor of Samuel Edelson and against the Ochroch driver. “It is our opinion that the verdicts of the jury absolving the original defendant were so clearly against the weight of the evidence that the ends of justice required the granting of a new trial in all the cases.”
The rule is well settled that where a trial Judge or Court, who saw and heard the witnesses, grants a new trial, we will not reverse unless there is a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial or the outcome of the case: Foster v. Waybright, 367 Pa. 615, 80 A. 2d 801; Bellettiere v. Philadelphia, 367 Pa. 638, 81 A. 2d 857; Morse Boulger Destructor Co. v. Arnoni, 376 Pa. 57, 101 A. 2d 705; Harris v. Ruggles Lumber Company, 376 Pa. 252, 101 A. 2d 917.
In the Harris v. Ruggles case, 376 Pa., supra, the following quotation from page 255 is particularly pertinent: ““‘One of the least assailable grounds for the exercise of such power [to grant a new trial] is the trial court‘s conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; especially in such a case is an appellate court reluctant to interfere.“‘“: Bellettiere v. Philadelphia, 367 Pa. 638, 643, 81 A. 2d 857.”
We have examined the record and find no palpable abuse of discretion or error of law.
The Order of the Court of Common Pleas granting a new trial as to all defendants is affirmed.
I am compelled to dissent. The majority opinion is a blanket approval of the action of the court below which, in turn, clearly rests upon a usurpation of the constitutional fact-finding function of the jury.
We have been confronted with an increasing number of appeals from rulings of the lower courts wherein new trials have been granted “in the interest of justice” because the verdict was considered against the weight of the evidence. In the recent case of Decker v. Kulesza, 369 Pa. 259, 85 A. 2d 413, at p. 263 we said: “While an award of a new trial is an inherent power of the court and its exercise a matter of discretion, the discretion is not an absolute one and it is the duty of this Court to review and determine whether there has been an abuse of discretion: Jones v. Williams, 358 Pa. 559, 58 A. 2d 57; Martin v. Arnold, 366 Pa. 128, 77 A. 2d 99; Stewart v. Ray, 366 Pa. 134, 76 A. 2d 628. In Jones v. Williams, supra, speaking through the late Chief Justice MAXEY, this Court at p. 564 said: ‘While this Court usually supports the action of the trial court in granting or refusing a new trial we do not entirely abdicate our reviewing functions in such cases. This Court, too, has the duty to determine from the record whether or not the jury‘s verdict was so contrary to the evidence as to shock one‘s sense of justice and to make the award of a new trial imperative so that right may be given another opportunity to prevail.’ And see Carroll v. Pittsburgh, 368 Pa. 436, 84 A. 2d 505.“. Accordingly we review the record to ascertain whether the court below was justified in granting a new trial: Bellettiere v. Philadelphia, 367 Pa. 638, 81 A. 2d 857; Carroll v. Pittsburgh, supra; Decker v. Kulesza, supra; Martin v. Arnold et al., 366 Pa. 128, 77 A. 2d 99; Stewart et vir v. Ray et al., 366 Pa. 134, 76 A. 2d 628.
A careful review of the testimony in this case clearly reveals that the court below unwarrantedly invaded the jury‘s province and substituted its conclusion for that of the jury. The collision of motor vehicles out of which the action arose occurred on December 29, 1951 at about 7 P.M. in Philadelphia at the intersection of Wissahickon Drive which runs north and south, and Ridge Avenue which runs east and west. At the intersection Ridge Avenue is 35 feet and Wissahickon Drive 135 feet wide between curbs. At the time of the accident it was dark and the roads were wet. The collision occurred on the eastbound lane of Ridge Avenue at the extreme eastern end of the intersection. Samuel Edelson was driving a Buick sedan northwardly on Wissahickon Drive in the easternmost lane of the three lanes for northbound traffic. With him as passengers seated to his right on the front seat were his sisters Fanny and Ida, co-plaintiffs with Samuel in the action. The driver of the Ochroch Transportation Company tractor-trailer was driving eastwardly on Ridge Avenue. Refus Dittman, an employe of the Fairmount Park Commission, called as a witness by plaintiffs, produced a map or diagram of the intersection and confirmed the above stated dimensions of the intersection, but testified that he knew nothing about the traffic signals. The foregoing facts are undisputed. Samuel Edelson (plaintiff and additional defendant) testified that he was on his way from Media to a destination in Germantown; that he was travelling about 20 miles per hour as he approached the intersection, and nothing in his testimony justified a finding that he had diminished his speed
Dupree, the driver of the Ochroch Transportation Company‘s truck, as established by counsel for the plaintiffs on cross-examination, had been travelling on Ridge Pike for a considerable distance before he came to Wissahickon Drive. In Collegeville, some miles west of the scene of the accident, the driver had noticed a Jones Motor Freight truck travelling east ahead of him. Dupree testified that he was travelling about 100 feet back of the Jones truck; that when his truck was about
The majority opinion, after stating, “It will not be necessary to recite the facts . . .“, proceeds to quote from and rely upon portions of the opinion of the court en banc wherein, inter alia, the latter states, “... The overwhelming weight of the evidence indicated plainly that the traffic light was in favor of Samuel Edelson and against the Ochroch driver.“. The record supplies no justification for this statement. Moreover it is a broad generalization that ignores the law applicable to the factual situation presented. That the light was in favor of Edelson‘s favor (if it was) when he entered the intersection does not absolve him from liability. The driver of an automobile may not rely solely upon a green signal but before entering upon an intersection must look
Not only did the court below substitute its judgment for that of the jury with respect to the question of Edelson‘s negligence, but in like manner disposed of the question of the truck driver‘s negligence. It completely rejected the testimony of Dupree, Ochroch‘s driver, that he entered upon the intersection when it was green and that the light did not change to amber or red until he was well across. No witness contradicted Dupree‘s testimony in this regard and indeed it was corroborated by the testimony of Mr. McBride who started forward a bare instant after the light had turned green for him, at which time he was confronted with the Ochroch truck which was in the intersection and so close at hand that he had to immediately stop his car to avoid hitting it. The court refused to give credence to Dupree‘s testimony on the ground that the latter had given inconsistent versions with respect to the traffic lights. On direct examination Dupree testified, as above stated, that when he entered the intersection the light was green, that when he was halfway across it changed to amber and when three-quarters of the way across it changed to red. On cross-examination he was asked what was the condition of the light when he approached the intersection and he testified that it was changing from amber to red. On further cross-examination, his attention having been called to what might have been regarded as an inconsistency in his testimony, he testified that the light was changing from amber to red as he approached the intersection when he was about 150
It has been necessary to discuss the testimony at some length to meet the interpretation placed upon the evidence by the court en banc. After carefully reading and considering the testimony from beginning to end, the writer of this opinion would have no difficulty in arriving at the verdict reached by the jury. This, however, is beside the point for neither this Court nor the court en banc can inject its opinion where the evidence supports the conclusion of the constitutional fact-finding body. It is difficult to understand how the court
In the instant case the very able and experienced trial judge fairly, impartially and comprehensively presented the issues to the jury in a charge to which the Edelsons took no exception. To set aside the verdict rendered is in my opinion nothing less than a judicial abandonment of the right to trial by jury.
Mr. Justice JONES joins in this dissenting opinion.