38 A.2d 511 | Pa. Super. Ct. | 1944
Argued April 11, 1944. The plaintiff, Rev. James F. Murphy, brought suit to recover property damages and for personal injuries sustained on Sunday afternoon, March 16, 1940, alleged to have been the result of the negligent operation of a truck owned by Donald Kuhlman, leased to the Wolverine Express, Inc. and driven by Charles McFeaters. The trial resulted in a verdict of $1,996.37 for the plaintiff against the Wolverine Express, Inc. only, one of the three defendants. The court refused a motion for judgment n.o.v. but entered an order granting a new trial on the ground that the verdict was against the weight of the evidence, which showed that at the time of the accident McFeaters was not engaged in the business of his employer.
Wolverine Express, Inc. operates a fleet of trucks and is certificated as a common carrier in Ohio, and apparently in some other states, but not in Pennsylvania. McFeaters, one of the Wolverine drivers, on Saturday, the day before the accident, was in Youngstown, Ohio, where he detached the truck tractor from a loaded semitrailer and drove to his home near Grove City, Pennsylvania, a distance of about 30 miles, to spend the night. Upon his return trip to pick up his load, which was to be delivered to Grand Rapids, Michigan, a collision occurred about 4 miles east of Sharon, Pennsylvania.
The plaintiff alleges that the evidence shows that it was the custom of McFeaters to take long trips, lasting *128 5 or 6 days, and that during these periods the truck was in his custody and he was responsible for all equipment, accessories, etc; that when he had a layover and was in need of sleep he usually would detach the trailer and drive to a hotel, which at times was quite a distance from where he left the trailer.
There was no denial that the negligent operation of the car was the cause of the collision, nor was the plaintiff charged with being guilty of contributory negligence. The defense was that at the time the collision occurred McFeaters was not upon the business of his employer. The burden was upon the plaintiff to prove that the Express Company was the owner of the truck and that the driver was its employe, and at the time of the accident he was in the course of his employment. The plaintiff made out a prima facie case by showing the trailer was a business vehicle with the name of the Wolverine Express Inc. appearing on it in letters 3 to 4 inches in height. That proof required the case to be submitted to the jury notwithstanding uncontradicted oral evidence was produced by the employer that the vehicle was not being used for its purpose when the collision occurred. The use of a business vehicle is presumed to be for its owner and when damage has been caused by its negligent operation an issue of fact is raised for the jury's consideration.
In Holzheimer et ux. v. Lit Brothers,
There was a further complaint that the court erred in refusing to permit plaintiff's witness Roy O. Wyatt a member of the Pennsylvania Motor Police, to be cross examined as to statements made by McFeaters immediately after the accident. It is argued that if the court had allowed this line of cross examination the presumption that the truck was being used in the Express Company's business would have been rebutted.
In Felski v. Zeidman,
The appellant argues also that it was improper to receive a verdict under which it alone was held liable. Here, as in EastBroad Top Transit Company v. Flood,
The last two matters to which we have referred relate to alleged trial errors, which, if committed, would have required a new trial. In any event they do not add any strength to appellant's motion for judgment n.o.v. It has been decided many times that a court in considering motion for judgment n.o.v. can neither eliminate evidence which may have been improperly admitted, nor insert offers of evidence which should have been admitted, but must rely upon the record as it exists at the close of the trial without the correction of any errors in the admission or exclusion of evidence: Heffron, *131 Admrx. v. Prudential Insurance Company of America,
The granting of a new trial is largely within the discretion of the trial judge. If he believes upon reasonable grounds that the verdict is against the weight of the evidence and that the plaintiff has made out a prima facie case the proper remedy is to grant a new trial: Iacovino v. Caterino et al.,
The order of the court below is affirmed.