Boyle v. Ward

• Decision Date: 30 June 1941
• Docket Number: No. 517 Civil.,517 Civil.
• Citation: 39 F. Supp. 545
• Parties: BOYLE et ux. v. WARD.
• Court: U.S. District Court — Western District of Pennsylvania

39 F. Supp. 545

BOYLE et ux. v. WARD.

No. 517 Civil.

District Court, M. D. Pennsylvania.

June 30, 1941.

A. M. Lucks and David J. Reedy, both of Scranton, Pa., for plaintiffs.

James W. Scanlon, of Scranton, Pa., for defendant.

JOHNSON, District Judge.

This is an action in trespass brought by Cornelius Boyle and his wife, Ethel Boyle, against Louis N. Ward, to recover damages for personal injuries sustained by Mrs. Boyle on April 6, 1939, when the automobile in which she was riding, driven by the defendant, upset on a highway in New York State, between Binghamton and Sidney. The case was tried before the court and a jury and a verdict rendered for the husband in the sum of $998.40, and in favor of the wife in the sum of $4,796.60. The defendant has moved the court to set aside the verdict and enter judgment for the defendant, or if this is refused, to grant a new trial.

I. Motion to Set Aside the Verdict and Enter Judgment for the Defendant.

The reason assigned for this motion is that there is not sufficient evidence to sustain the verdict, and that the verdict and judgment are against the weight of the evidence. Defendant alleges that plaintiffs failed to prove negligence of the defendant. Plaintiffs produced evidence sufficient to warrant the jury in finding that at the time of the accident the road was dry, straight, and eighteen feet wide; that there were no other automobiles in the immediate vicinity proceeding in either direction; that the weather was clear; that the automobile was driven between 25 and 35 miles per hour; that without warning the automobile suddenly swerved from the road to the right, rolled over two and one-half times and came to rest on its side. This is prima facie evidence that the car was negligently driven, and unless some explanation is offered by the defendant which absolves him from negligence, the court cannot now find as a matter of law that he was free from negligence, and set aside the verdict. "Negligence is not presumed from the mere happening of the accident, but from the circumstances under which it occurred. It was an abnormal occurrence such as in the usual course of events does not occur. An automobile when driven along a dry level road in daylight at proper speed and under control is not accustomed to leave the pavement. * * * Where a thing is shown to be under the management of defendant and the accident is such as in the ordinary course of things does not happen if proper care is used, the burden is on defendant to prove that the accident did not arise from want of care": Maltz v. Carter, 311 Pa. 550, 166 A. 852, and cases there cited. Here, defendant offered no explanation absolving himself from negligence. His only explanation was as follows:

"Q. Now, will you please tell the court and jury what happened at the time this accident happened? A. Well, we had gone out the main road at Harpersville proceeding along very nicely and somewhere about 2 miles, I should say, on that road to Schenectady all at once the car started to leave the road and the first thing I know we were going down this bank, here.

"Q. And that is all you know about what happened, is that right? A. That is all." Trial Record, page 104.

The above answers do not tend to absolve the defendant from negligence. Counsel for defendant argues that this case is not parallel to the case of Maltz v. Carter, supra, but is analogous to the cases of Simpson v. Jones, 284 Pa. 596, 131 A. 541 and Riley v. Wooden, 310 Pa. 449. 165 A. 738. In the Maltz case, supra: "The party were returning home from a trip to Shenandoah, Schuylkill county, at about 3 a. m., on a clear moonlit night, over a dry cement road, 16 feet wide, in good condition, and, at the place of the accident, straight. The headlights of the automobile were burning, the speed was not more than 30 miles an hour, and there was no other traffic on the road at the moment. Without warning, the car swerved and left the road on the right-hand side and struck a tree 7 3/10 feet from the edge of the concrete and up an eighteen-inch rise. The machine was demolished, the driver so seriously injured that he died twelve hours later, and plaintiff suffered severe permanent injuries. There is no dispute about the facts, no complaint was made of decedent's driving before the time of the accident, and no evidence offered in explanation of the car's suddenly leaving the road." 311 Pa. at page 552, 166 A. at page 852. The court held that this statement affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.

The jury here could have found a very similar situation, perhaps even a stronger case, for here the car was traveling in daylight. About the only distinction between the Maltz case and the case at bar is that in the present case, instead of striking a tree after leaving the road, the car rolled over two and one-half times, covering a distance of approximately fifty feet. In the Simpson case, supra, relied upon by the defendant, the defendant offered a very definite explanation of what had occurred. He had been traveling in the center of the road, and had attempted to turn over to his side of the road, whereupon the car skidded. He gave a detailed account of the occurrence, and the court and jury were of the opinion that he had used ordinary care, and at most had made a mistake in judgment, short of negligence or carelessness. In the Riley case, also cited by the defendant, there were several possible causes suggested by the evidence, including a slippery road. The testimony of several witnesses was that defendant apparently lost control of his car, that the car "couldn't stop", and under all the evidence the court granted a compulsory nonsuit, sustained by the appellate court, because plaintiff had alleged excessive speed and lack of control, had failed to prove them, and the court felt that at best a mistake of judgment had been proved. The cases cited for the defendant are not comparable to the case at bar, for here defendant was unable to give any explanation of the accident, or to offer any evidence tending to free himself from negligence.

In his brief counsel for the defendant suggests that there might have been a mechanical defect which caused the accident. In view of defendant's own testimony that he drove the car between fifty and sixty miles home immediately after it was righted (Trial Record, pages 104, 105), the jury might well conclude that mechanical defects played no part in the accident.

Since there was sufficient evidence upon which the jury could find defendant negligent, the motion to set aside the verdict and enter judgment for the defendant must be refused.

II. Motion for a New Trial.

Defendant's reasons for a new trial numbers 1, 2, and 4, and his additional reasons 4 and 5 are covered by the above discussion, and they are therefore decided against the defendant.

Defendant's third reason for a new trial alleges the damages are excessive, and his third additional reason charges that the court erred in allowing irrelevant and immaterial statements of gross earnings of the husband plaintiff's business to be discussed before the jury, and in overruling defendant's motion for a mistrial at that time.

When plaintiff offered evidence of the husband's earnings in his business, defendant objected and his counsel asked the withdrawal of a juror, stating in the hearing of the jury: "It is entirely irrelevant and immaterial in this lawsuit and obviously for the purpose of prejudicing the minds of this jury." Trial Record, page 44. The objection to the testimony was sustained, but the court refused to withdraw a juror. While figures were stated in the hearing of the jury, the impression was not made upon the court that the offer was made to prejudice the jury's minds. The offer was made in good faith, and the only indication to the jury that prejudice might result came from the lips of defendant's own counsel, quoted above. The various offers and the comments of plaintiff's counsel thereon were not improper as to require the granting of a new trial. Under all the circumstances, and in view of the instruction to the jury by the court at pages 46, 48 (2 times), 49, and the charge of the court on the measure of damages, page 125, defendant's case was not prejudiced. No...