Edelson v. Ochroch

• Decision Date: 04 January 1955
• Citation: 111 A.2d 455,380 Pa. 426
• Parties: Samuel EDELSON, Fanny Edelson and Ida Edelson, v. Charles OCHROCH and Albert Ochroch, individually and Trading as Ochroch Transportation Company, Appellants, and Samuel Edelson, Additional Defendant, and two other cases.
• Court: Pennsylvania Supreme Court

111 A.2d 455

380 Pa. 426

Samuel EDELSON, Fanny Edelson and Ida Edelson, v. Charles OCHROCH and Albert Ochroch, individually and Trading as Ochroch Transportation Company, Appellants, and Samuel Edelson, Additional Defendant, and two other cases.

Supreme Court of Pennsylvania.

January 4, 1955

Petition for Reargument Dismissed Feb. 18, 1955.

Trespass for damage to automobile and injuries sustained by occupants in collision with defendants' truck at street intersection, wherein driver of automobile was made an additional defendant. The jury returned verdicts in favor of occupants of automobile against automobile driver alone, and from orders of the Court of Common Pleas, No. 1 (Tried in C.P. No. 7) of Philadelphia County, as of June Term, 1951 No. 208, L. Stauffer Oliver, P. J., and Joseph Sloane and James C. Crumlish, JJ., granting a new trial as to all defendants, defendant owners of truck appealed. The Supreme Court, Nos. 205, 206, 207, January Term, 1954, Bell, J., held that record disclosed no such palpable abuse of discretion or error of law as would justify reversal of orders granting new trial on ground that verdict absolving truck owners from liability and finding that negligence of automobile driver was sole cause of collision were against the weight of the evidence.

Order affirmed.

Chidsey and Jones, JJ., dissented.

Norman Paul Harvey, Peter P. Liebert, 3rd, John J McDevitt, 3rd, Philadelphia, for appellants.

Richard E. McDevitt, Henry T. Reath, John B. Martin, Duane, Morris & Heckscher, Philadelphia, for appellees.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL, Justice.

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 with Samuel Edelson’ and awarded damages to Ida Edelson in the sum of $12,671, and to Fanny Edelson in the sum of $700. The lower Court granted a new trial as to all defendants.

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, 58 A.2d 57. 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, 101 A.2d 382. 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 is 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 R. Co., 366 Pa. 158, 162, 76 A.2d 379.

‘ We are satisfied that the verdicts reached were against the weight of the evidence and that justice requires a new trial. Bellettiere v. City of Philadelphia, 367 Pa. 638, 81 A.2d 857. See also Pendleton v. Philadelphia Transportation Company, 376 Pa. 598, 103 A.2d 724; Harris v. Ruggles Lumber Company, 376 Pa. 252, 101 A.2d 917; Streilein v. Vogel, 363 Pa. 379, 69 A.2d 97. 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. City of Philadelphia, 367 Pa. 638, 81 A.2d 857; Morse Boulger Destructor Co. v. Arnoni, 376 Pa. 57, 101 A.id 705; Harris v. Ruggles Lumber Company, 376 Pa. 252, 101 A.2d 917.

In the Harris v. Ruggles case, 376 Pa. 252, at page 255, 101 A.2d 917, at page 918, supra, the following quotation 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. City of Philadelphia, 367 Pa. 638, 643, 81 A.2d 857, 859.’

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.

CHIDSEY, J., files a dissenting opinion, in which JONES, J., joins.

CHIDSEY, Justice.

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, at page 263, 85 A.2d 413, at page 415, 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 had 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, 358 Pa. at page 564, 58 A.2d at page 60 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, had 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. City of 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. City of Philadelphia, 367 Pa. 638, 81 A.2d 857; Carroll v. City of Pittsburgh, supra; Decker v. Kulesza, supra; Martin v. Arnold, 366 Pa. 128, 77 A.2d 99; Stewart v. Ray, 366 Pa. 134, 76 A.2d 628.

It is well settled that a new trial should not be granted because of a mere conflict in testimony or because the trial judge on the facts would have arrived at a different conclusion. It is sufficient to refer to the recent case of Carroll v. City of Pittsburgh, supra.

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...