Anderson v. Hughes

• Decision Date: 16 March 1965
• Citation: 208 A.2d 789,417 Pa. 87
• Parties: Gary ANDERSON, Appellant, v. James HUGHES, Jr., and Anna Hughes, Administratrix of the Estate of James Hughes, Sr., Deceased, and Donald Hughes, Individually and as Co-partners Trading as Hughes and Sons, and Gene Ford.
• Court: Pennsylvania Supreme Court

Page 789

208 A.2d 789

417 Pa. 87

Gary ANDERSON, Appellant, v. James HUGHES, Jr., and Anna Hughes, Administratrix of the Estate of James Hughes, Sr., Deceased, and Donald Hughes, Individually and as Co-partners Trading as Hughes and Sons and Gene Ford.

Supreme Court of Pennsylvania.

March 16, 1965.

Rehearing Denied April 19, 1965.

Michael C. Rainone, Philadelphia, for appellant.

James E. O'Neill, Jr., W. Richard Gentry, Rogers & O'Neill, West Chester, for appellees.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

JONES, Justice.

On March 29, 1959, at approximately 11:30 a. m., Gary Anderson, [Anderson], owned and was then operating a motor vehicle which was the last vehicle in a funeral procession, consisting of 12 or 13 other vehicles, which was proceeding along West Chester Pike, Chester County, enroute to Rolling Green cemetery. At the cemetery entrance, the lead vehicle in the procession stopped to effect an entry into the cemetery and Anderson's vehicle stopped. As Anderson's vehicle stopped it was struck in the rear by a truck. This truck was operated by one Gene Ford, [Ford], an employee of and engaged at the time upon the business of James Hughes, Jr., James Hughes, Sr. and Donald Hughes, individuals and trading as Hughes & Sons, [Hughes], the owners of the truck.

Anderson instituted a trespass action in the Court of Common Pleas of Chester County against Ford and Hughes. After a trial before a court and jury, the jury returned a verdict in favor of Ford and Hughes and against Anderson. Anderson filed motions both for a new trial and judg-n. o. v.; the latter was withdrawn and the former was dismissed by the court below. From judgment entered upon the verdict this appeal was taken.

Anderson contends: (1) the evidence so clearly reveals negligence on the part of Ford and Hughes and the lack of negligence on the part of Anderson that Anderson is entitled to a new trial limited to the question of damages; (2) in view of the weight of the evidence, a new trial generally must be granted; (3) the trial court erroneously applied the so-called 'Dead Man's' rule ¹ and excluded the testimony of Anderson as against Hughes and such error requires a new trial be granted; (4) the instructions of the tril court were confusing, contradictory and incorrect and, therefore, a new trial must be granted.

First, Anderson takes the position that, in view of the evidence, the trial court should have directed a verdict at trial against Hughes and Ford on the ground of liability and, not having done so, a new trial limited to damages must now be granted. In support of his contention, Anderson relies in large part upon the so-called 'incontrovertible physical facts' rule. ² This rule has no application under the factual situation presented in the case at bar: MacDonald v. Pennsylvania R. R. Co., 348 Pa. 558, 561, 562, 36 A.2d 492. See also: Giragosian v. Philadelphia, 394 Pa. 476, 147 A.2d 309; Chapple v. Sellers, 373 Pa. 544, 96 A.2d 868. The testimony in the case at bar is oral testimony and our review of the record indicates that the jury could well have found, from this oral evidence, that Ford's operation of the truck was negligent and Anderson's operation of his vehicle non-negligent or that Ford's operation of the truck was not negligent or that Anderson's operation of his vehilce was negligent or that both parties in the operation of their respective vehicles were negligent. However, the resolution of these issues of negligence and contributory negligence was clearly a matter for the jury to determine. There is no warrant in the law, under the instant factual situation, for the grant of a new trial limited to damages.

Anderson's second contention is without merit. What Anderson urges is that, since the evidence so clearly shows not only that he was free of negligence and that Ford and Hughes were negligent, the verdict of the jury was contrary to the weight of such evidence. We do not so read the record.

The third contention is of more serious import. This action was instituted against James Hughes, Jr., James Hughes, Sr. and Donald Hughes, individually and trading as Hughes & Sons. Subsequent to the institution of the action but prior to the trial thereof, James Hughes, Sr. died and his personal representative was substituted of record in his stead. At the trial, the court permitted Anderson to testify against Ford but excluded such testimony as against Hughes on the authority of the so-called 'Dead Man's' rule, supra. When Anderson's testimony was offered, defense counsel objected to the use of such testimony as against Hughes and the objection was sustained; at that time, Anderson's counsel did not claim that Hughes had waived any rights under the 'Dead Man's' rule, supra. In its instructions, the trial court did exclude from the consideration of the jury Anderson's testimony as against Hughes but not against Ford. It was argued in the court below that the exclusion of such testimony under the 'Dead Man's' rule, supra, was erroneous because the immunity under the statute had been waived by (a) the fact that a deposition, covering matters which had occurred prior to the death of James Hughes, Sr. had been taken of Anderson and filed of record prior to Hughes' death and had been used at trial for cross-examination of Anderson and (b) the fact that interrogatories, covering matters which had occurred prior to the death of James Hughes, Sr.,...