*1
285
211
Rus
A. 2d
v.
460; Commonwealth ex rel. Lofton
rel.
418 Pa.
211
2d
Commonwealth ex
sell,
A.
517,
427;
Butler
Com
416 Pa.
206 A.
283;
2d
Rundle,
321,
monwealth ex rel. Maisenhelder v.
Furthermore, plea guilty open is a confession of or guilt the crime with crimes which he is con charged the indictment and also stitutes waiver of nonjurisdictional all defects defenses. Commonwealth ex rel. Ward v. 419 Russell, Pa. 240, 2d Commonwealth ex rel. Swilley 420 Maroney, supra; Commonwealth rel. ex Hobbs v. A. Russell, 215 Common 2d wealth ex rel. 2d Adderley Pa. Myers, 624; Commonwealth ex rel. Sanders v. Maroney, 2d 789; Commonwealth ex Walls v. rel. Rundle, 198 A. 2d 528; Commonwealth ex rel. Parker v. Myers, 200 A. 2d 770.
Order affirmed. Mr. Justice Cohen took no part in the considera- tion decision of this case.
Wylie Appellant. v. Powaski, Argued Mus- 1966. Before Bell, March 21, O. J., Egberts, O’Brien Eagen, manno, Jones, Cohen, *2 JJ. Robinson, him David L.
Paul M. with Robinson, appellant. Long, for Fisher Robinson, & Horn, Best him & Smith, B. Patrick with Costello, appellees. for 1966: June Opinion by Mr. Musmanno, Justice repeatedly without This Court has declared “ granting of “the . .
modification
reservation that
c.
power
immemorial
a new trial is an inherent
appellate
find
not
will
the
court and an
court
trial
authority absence
the
the exercise of such
fault with
as
. . .
of the least
of discretion
One
of a clear abuse
power
grounds
is the
for the exercise of such
sailable
against
the verdict was
trial
conclusion
court’s
weight
and that
of the evidence
the interests
the
require
justice
awarded;
trial
a new
be
therefore
appellate
especially
a case is an
court reluc
in such
”’
592.)
(Clewell v.
Pummer,
interfere.”
tant
judge
supported by
in this
other
two
case,
trial
The
“This Court realizes that
is
judges,
it
stated:
testimony.
to resolve
province
Court
conflicts
of the
duty
particular
jury,
of is the
is
This
duty
weigh
of this Court to
law
evidence and the
jury disregards
if the
and,
evidence
credible
apply
properly,
does not
the law
then this Court must
(Burd
Pennsylvania
a new trial.
Railroad
Company,
292).
“It is the case this that in this including photographs the credible evidence automobiles, which were in this admitted into evidence position plaintiffs substantiated trial, of the jury by finding that the de- verdict favor of the disregarded presented by fendant the credible evidence plaintiffs jury’s against and that the verdict was weight of the evidence and the law therefore, and, granted.” a new trial should be litigation involved a conventional automobile *3 plaintiff’s proceeding eastwardly the accident, car on advancing southwardly Route the defendant’s car unceremoniously joining on Route and both cars together by in the middle of the intersection caused highways plaintiff’s intercrossing. those two The ver- supported by sion of the collision was two disinterest- stop ed witnesses that the defendant failed to at a Stop sign plaintiff’s and crashed into the car which had entered into the full accord with governing highway. the rules safe on travel the The defendant denied the accident occurred out- as plaintiff’s plaintiff lined the and said case, that the left and to the struck the of swerved front end stopped. he was when judge
The trial saw and heard the and witnesses position appraise in an excellent was, therefore, to credibility study of the evaluate witnesses. A of us that convinces there the record was no abuse of dis- awarding of a neAVtrial. cretion The order of court is, therefore, the lower Affirmed.
Dissenting
Opinion
by
Bell
:
Mr.
Justice
Chief
evidence
conflicting
The
after
jury
hearing
trial
charge
very
by
after a
able and thorough
found
in favor of defendant.
a verdict
Judge,
principle
have
correctly
stated
majority
from an
this Court
appeal
law*
on an
applies
which
correctly
Order
a new
then fail
granting
trial,
apply it. More
both the lower
particularly,
evi-
failed to
majority
penetratingly
analyze
principles
dence and then
the well established
apply
is
a
are
thereto. The result
applicable
(1)
law which
law upon
clear abuse
discretion and
an error of
(2)
the lower Court based its
of a new trial.
which
this
lower Court and the
First,
majority
Court have overlooked the
crucial
in the
point
most
case. The
testimony
plaintiff
disclosed
herself
contributory
she
guilty
negligence
if
for
matter of
the verdict had been
plain
tiff
of for
have
instead
this Court
defendant,
would
had
for
to enter
defendant non
judgment
obstante
veredicto. Grande
Wooleyhan Transport Co.,
46 A. 2d
241; Papkin
Katz,
Helfand
2d
Stout,
Enfield
Plaintiff testified that she was driving miles her hour and vision was although unimpeded J/00 for in the direction which yards ap- from defendant she did see proaching, car until just *4 defendant’s car struck her car. Plaintiff testi- before defendant’s “A. . . didn’t notice fied: .1 anything to the so left * appellate law is well settled Court will reverse only grant a new trial if there or denial of a was clear abuse of law or an error which controlled of of discretion outcome Shemaka, a trial. Amon v. of new Pa. or the case 419 Merloe, 238; 408, Trimble v. 413 314, 318, Pa. A. 2d A. 2d 214 197 elder, A. 2d v. Clewell DeMichiei Holf 2d 375. Pummer, 131 A. I proceeded on into the I intersection and as just as, came to it from —I could see side view well, this — whatever call it they what was you attention have, my very I quickly caught by this car and approaching turned I he saw to hit me and wasn’t going I anything do prevent could to It was the accident. Q. and so that is—I mean inevitable, he hit me. just Did you look—where were you looking ap you as proached this where were you looking? intersection, A. Q. Well, straight ahead. ... far then, Now how away were if you can tell from the intersection you, us, when you first saw Mr. Powaski’s automobile? aWas matter a second or so I time caught of from him out the side until hit he me*. . A. . when Well, of I saw him I—it coming, matter seconds just or so until he hit the side the car.”
In Grande v. Wooleyhan Transport Co., supra, discussing through a driver on a duty when highway he enters an applicable intersection, law is well correctly 539) stated : “We (pp. 538, have said repeatedly care at is street crossings highest duty drivers: Johnson v. French, 133) Byrne Schultz, even cases there cited. This true is when one has the We right way. said Byrne : 433) ‘The law Schultz, supra, (p. obliga makes only of common the rule sense tory regarding duty of a driver at the intersection of where traffic is streets, very because He dangerous conflicting. vigi must be a high degree must exercise lant, must have care, complete his car under must control, look and see is before what visible, attempting cross the intersect The driver must street.’ look ing only left he enters the is his duty to look as he to continue advances: Meitner v. Scar * throughout, ours. Italics
290 Grabosky, Shapiro
borough,
v.
Pa.
184 A.
321
212,
585,
Pa.
Allcutt,
184 A.
Stevens
556,
.
“. . . In not after guilty negligence law.” he as a matter of of Papkin supra, the H In and and Katz, elf 486-487) pertinently Mrs. (pp. . . : “. said Papkin just prior she that to the accident testified noth her left ‘saw looked to and then to her coming ing way to coming or the other or either one plaintiff way, and on her wards’ her. The continued three-quarters away she across,’ ‘about when she was against the felt ‘a terrible and she ‘heard a crash thud,’ . car.’. . opinion refusing off in to take
“The court below its compulsory correctly nonsuit stated the rule quoting applicable from character; cases this law Byrne fol- Schultz, 125, obligatory only of com- : the rule ‘The law makes lows regarding duty inter- mon of driver at the sense very dangerous be- section of where traffic is streets, conflicting. vigilant, cause He must be must exercise degree high have car a plete must his under com- care, and must see look, visible, what is control, attempting intersecting In before to cross the street.’ Galliano v. East Penn Electric Co., duty ‘It said: is the driver of a we car or a motor vehicle at all street times to have having under car control, one’s under control having it under such control means stopped that can be doing any person injury any
before situa- reasonably likely to arise tion that is under cir- properly ‘plain- The court below cumstances.’ held the testimony obviously own convicted her con- tiffs negligence tributory under the above stated well estab- only law. conclusion rules lished can be testimony is her from the accident drawn part, by at least her caused, own carelessness disregard safety. duty en- for her own It was her *6 tering the intersection to continue to look until her intersecting assure view the to road was sufficient her that could in she clear the intersection advance any approaching speed,’ vehicle a . at not unusual . . testimony obviously failure Plaintiff’s of a convicts her so to continue to look as she entered intersection. properly The court below also held statement that the of defendant’s driver that the car he was brakes driving plaintiff of were defective did not relieve the consequences negligence.” contributory of her own supra, In Court said Stout, Enfield (page 12) : “. . . While the driver of an automobile through highway may properly on a that one assume approaching stop perform highway that aon street will legal duty stop yield right-of-way his to (Rowles (1944)), 2d 255 Evanuik, right-of-way through quali highway still the on a is a fied one and the driver of an automobile thereon must precautions regard take such control speed keeping an of his alert lookout for cars prudent approaching reasonably the intersection as a safety man of his own solicitous would take: Martin (1950). v. Hoffman et A. 2d 529 al., argued It that Donald Stout is also did not continue drove the out to look as he truck into the intersection. negligence (Papkin would constitute course, This, Helfand and Katz, 2d 112 (1943)), .. plaintiffs’ that under
It own is clear version of recovery she was entitled either accident, very or at a least, a matter verdict for de- only thoroughly have been not justified, fendant would inescapable. Opinion compounded its The lower its by justified two additional errors. It basic error its by of law error a reversible of a new trial, first, by secondly, discussed, will be hereinafter wbicb plaintiffs stating wit- called two disinterested namely, “substantiated Eoss and who Stull, nesses, wife-plain- respect testimony every of the almost defendant had entered into the tiff” that Stop stopping sign, auto- and that his at the without plaintiffs’. a misrecollec- mobile collided with This is absolutely the testi- incorrect statement tion, mony. operated
Plaintiffs’ who owned witness, Eoss, gas testify, but at this did station so intersection, testimony by contradicted defendant who said in- after Ross told him he was the accident *7 gas he did not see the accident. side the station and repeat, the Plaintiffs’ other we who witness, Stull, plaintiffs’ testi- lower Court stated had substantiated mony every respect, in almost as well testified—as just to defendant he did stated after the accident—that testify not see the accident. He did not that defend- stop Stop sign, ant at the or that failed defendant plaintiffs’ had run into the automobile.
Plaintiffs’ third Catherine witness, Frederick, operated passenger by plaintiff in the car Lenora plaintiff Wylie, testified for “A. follows: We were just going happy I on Euote was I so that didn’t straight I to be alone and looked I have never ahead, happened. I to the never looked know what . . .” side, stopped Defendant testified that he at the corner proceeding that as he was at about 20 miles an plaintiff, going approximately at the rate of hour, swerved into the miles an front hour, end of car. passenger, was a who wife, His corroborated his ver- the accident and inter testified, sion that de- alia, stopped Stop sign, got at the fendant and after his car plaintiff middle of the into the intersection, swerved him. into
All collision agreed witnesses that after plaintiffs’ car continued on Route which 30 (along it plaintiffs had been 300 or 400 feet before driving) pulled off the road onto the herm- it is clear from the Opinion lower Court’s that granted a new trial erroneous principally because of its concept of the that amounted pictures namely, to a “clear, incontrovertible which es- physical fact” tablished that of defendant and her wit- testimony ness as to how the accident occurred was “impossible A first pictures at glance would indicate plaintiffs’ version of the accident de- was correct, viz., fendant ran into plaintiffs’ pictures car. The show ear plaintiffs’ badly the center damaged of the left side and that defendant’s car damaged in the front part. to the
Contrary belief and ruling Court, the lower “a photograph is not an incontrovertible fact.” physical Streilein v. Vogel, A. 2d 384-385, Heimbach Peltz, 384 Pa. 121 A. 2d Krobot v. Ganzak, Superior Ct. 2d 311. For this reason we alone, would have to reverse Order a new trial. granting if we
Moreover, analyze pictures light plaintiffs’ own it is if clear that testimony, defendant’s plaintiffs’ had run into plaintiffs ear (which ad mitted was going miles defendant’s car hour), *8 plaintiffs’ would have overturned car or knocked it off repeat the road.* We therefore that under plaintiffs’ either (a) she could not evidence, own have recovered contributory of her because negligence, (b) any great weight the evidence event, supports and inhibits the grant verdict jury’s a new trial. To Under summarize: evidence in this case applicable principles of is crystal clear * clearer under plaintiffs’ is even defendant’s This evidence of speed. for each of the aforesaid reasons the lower
(1) granting (2) erred Order new trial, (3) judgment should be reversed and en- should be on tered the verdict in favor of defendant. Appellant, Commonwealth ex rel. Creen, Myers. Mus- May C. J., Before Bell, 1966.
Submitted JJ. and Roberts, O’Brien Eagen, Jones, manno, appellant, propria Green, Jr., James Isaiah persona.