Halprin v. Mora, 11618.

• Decision Date: 15 March 1956
• Docket Number: No. 11618.,11618.
• Citation: 231 F.2d 197
• Parties: Eleanor B. HALPRIN, Administratrix of the Estate of Lawrence W. Halprin, Deceased, Appellant, v. Andre MORA, Defendant and Third-Party Plaintiff, Clarence W. Davis, Third-Party Defendants.
• Court: U.S. Court of Appeals — Third Circuit

231 F.2d 197 (1956)

Eleanor B. HALPRIN, Administratrix of the Estate of Lawrence W. Halprin, Deceased, Appellant, v. Andre MORA, Defendant and Third-Party Plaintiff Clarence W. Davis, Third-Party Defendants.

No. 11618.

United States Court of Appeals Third Circuit.

Argued November 1, 1955.

Decided March 15, 1956.

Rehearing Denied April 9, 1956.

Harvey Levin, Philadelphia, Pa., (Marshall A. Bernstein, Philadelphia, Pa., Bernstein & Bernstein, Philadelphia, Pa., on the brief), for appellant.

J. Grant McCabe, 3d, Philadelphia, Pa.) John B. Martin, Duane, Morris & Heckscher, Philadelphia, Pa., on the brief), for Mora, appellee.

E. Walter Helm, 3d, Philadelphia, Pa., (Raymond A. White, Jr., Philadelphia, Pa., on the brief), for Clarence W. Davis, Third Party Defendant, Appellee.

Before GOODRICH, KALODNER and STALEY, Circuit Judges.

STALEY, Circuit Judge.

The plaintiff, Eleanor B. Halprin, mother of Lawrence W. Halprin, a 13-year-old boy who died as a result of injuries sustained in an automobile collision, appeals from a judgment entered in favor of defendant Andre Mora and third-party defendant Clarence W. Davis. Plaintiff, as administratrix of the minor's estate, sued Mora, alleging that Mora's negligence was responsible for the collision which caused the boy's death. Mora was driving the car in which the boy was riding when the collision occurred. Mora brought in as third-party defendant Clarence W. Davis, driver of the other car involved in the collision.

Plaintiff claims on this appeal that for several reasons the district court abused its discretion in refusing plaintiff's motion for a new trial. First, according to plaintiff, the jury's conclusion that neither defendant nor third-party defendant was negligent was manifestly unreasonable on any view of the evidence.

The only eye-witnesses who testified as to the manner in which the collision occurred and the surrounding circumstances were the defendant Mora and the third-party defendant Davis. Plaintiff analyzes this testimony and concludes that defendant Mora's testimony clearly showed that third-party defendant Davis was negligent and that Davis's version of the accident just as clearly indicates that Mora was negligent. Thus, says plaintiff, no matter who the jury believed, it could not reasonably have found that neither driver had been negligent.

The district court in denying the motion for a new trial pointed out that in essential aspects the jury could have reconciled Mora's testimony with Davis's and found that the plaintiff had failed to sustain the burden of proof. Plaintiff says this can only be done by "going outside the evidence." A brief statement of facts will pinpoint the disagreement.

The collision occurred in the center of the northernmost lane of a three-lane highway which runs east and west. Davis said he was at all times traveling west in the northernmost lane and that Mora's car, which was traveling in the opposite direction (east), crossed the road and collided with Davis's car. Mora testified that he was traveling east in the southermost lane and pulled into the center lane to pass another car. While he was passing in the center lane, a light-colored car traveling west pulled out of the northernmost lane into the center lane. Mora said that he put on his brakes. When he did so his car swerved into the northernmost lane (the record is silent as to why the brakes did not work properly) and collided with Davis's car.¹

The district court said that the jury could have found that Davis was free of negligence if it believed that he never left his lane and could not have avoided the accident. Also that if the jury believed that Mora's brakes failed to work properly, then it could reasonably have concluded that negligence by Mora had not been established. The movement of the light-colored car into the center lane by which Mora was confronted with a sudden emergency could have been the cause of the accident.

Plaintiff, in the brief, seems to concede that had the evidence warranted a finding that there was a light-colored car (not Mora's or Davis's) in the center lane, the jury's conclusions would be reasonable. But, says the plaintiff, there was no such car. Davis's car was a light-colored car, and it was Davis who pulled into the center lane when Mora was in the act of passing. According to the plaintiff, Mora's testimony established beyond doubt that the light-colored car was actually Davis's car, not some other car. Plaintiff's view of the testimony seems to us to be without merit.

Mora said that a light-colored car was in the center lane, and it was established that Davis's car was a light-colored one, but to say that Mora was certain that the center-lane car was Davis's is to read into the evidence something which is not there.

Mora specifically said he could not state that Davis's car was in the center lane. In addition, he said that he did not see the center-lane car pull back into the northernmost lane, which was where the collision occurred, and at one point he said he did not know what happened to the center-lane car after he swerved into the northernmost lane.

There is really no need to set forth the testimony in detail. An examination of what Mora and Davis said compels the conclusion that the jury's findings as to negligence were reasonable.

Plaintiff next argues that the evidence submitted to the jury established prima facie negligence on the part of Mora. Under Pennsylvania law,² "The presence of an automobile on the wrong side of a highway is prima facie evidence of the driver's negligence * * *." See Richardson v. Patterson, 1951, 368 Pa. 495, 84 A.2d 342, 343; Miles v. Myers, 1946, 353 Pa. 316, 318, 45 A.2d 50, 51.

But the Richardson case also pointed out that "`The skidding of a vehicle does not of itself establish or constitute negligence. It is incumbent upon the plaintiff to prove the skidding resulted from the negligent act of the defendant; otherwise he is absolved from the consequences.'" 84 A.2d at page 343. In the case at bar the evidence warranted an inference that the Mora car had skidded or swerved onto the wrong side of the road. Davis was not sure whether Mora's car skidded, but Mora testified that it did. Mora's testimony was that the failure of the brakes caused the accident, and plaintiff did not introduce contrary evidence. In Ferrell v. Solski, 1924, 278 Pa. 565, 123 A. 493, the defendant's car swerved to the wrong side of the road and hit a telephone pole. The court said that since there was evidence that a depression in the right side of the road caused the car to veer to the left, and since no negligence on the part of the driver had been shown, the driver was entitled to a judgment.³

In the case at bar, an explanation for his presence on the wrong side of the highway was given by Mora, and the explanation was sufficient to warrant a verdict in his favor, plaintiff having failed to show or prove any negligence.

It is also urged by the plaintiff that the record shows the jury was confused by the interrogatories submitted. This point is presented in a most general manner, but the plaintiff does tell us that the jury was confused and uncertain as to the meaning of questions put to it and the effect of their answers.

Plaintiff calls attention to the fact that after more than a day of deliberation, the jury returned for additional instructions, and the questions they asked clearly manifested their confusion. But the record does not disclose that plaintiff objected to the wording of the interrogatories or that the plaintiff was at any time dissatisfied with the court's instructions to the jury.⁴ If the jury was so obviously confused, it seems strange that counsel did not request additional instructions so that the court could have dissipated the confusion. See Rule 51, Fed.Rules Civ.Proc., 28 U.S.C.

Although plaintiff does not give us much detail or assistance, in the brief she obliquely raises the question of the inconsistency of the answers given by the jury to the questions submitted to them. We have examined the questions and answers and considered their effect. They are as follows:

"1. Was there any negligence on the part of Mr. Mora which was a substantial factor in bringing about the accident? No.

"2. Was there any negligence on the part of Mr. Davis which was a substantial factor in bringing about the accident? No.

"3. What amount do you award as damages to the boy\'s mother? A thousand dollars.

"4. What amount do you award as damages to the administratrix of the boy\'s estate? Ten thousand dollars."

Although the answers to the first two questions do not seem in harmony with the answers to questions three and four, we do not think the judgment entered for the defendants should be disturbed. It seems clear from the record, first of all, that plaintiff did not think the answers were contradictory when the jury presented them. Polling of the jury was requested by plaintiff on the first two questions only. Nor does it appear from the record furnished us that any point covering the possible conflict in the answers was pressed before the district court on the motion for a new trial.

When the jury returned for additional instructions, inquiries were made by several of them concerning the effect of the answers to questions one and two on the necessity of answering questions three and four. The district court told the jury that the questions were entirely separate and that they were to answer all four questions. The court said it would know what to do with the answers because that was a matter of law.

As we have noted, plaintiff neither objected nor pointed out disagreement with the court's instructions, and nowhere in the record furnished us do we find evidence that the plaintiff considered the answers confusing, or inconsistent, or irreconcilable.

Although questions three and four use the word "award," we think the court was only asking about the amount of loss and that the...