Hegarty v. Berger
| Decision Date | 25 May 1931 |
| Docket Number | 177,178 |
| Citation | 155 A. 484,304 Pa. 221 |
| Parties | Hegarty et ux. v. Berger, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 21, 1931
Appeals, Nos. 177 and 178, Jan. T., 1931, by defendant, from judgments of C.P. No. 5, Phila. Co., March T., 1927, No 3997, on verdict for plaintiffs, in case of Hugh Hegarty et ux. v. Edna F. Berger. Affirmed.
Trespass for personal injuries. Before SMITH, P.J.
The opinion of the Supreme Court states the facts.
Verdict and judgments for plaintiffs, Mary Hegarty for $6,500, for Katherine Hegarty $1,000, and for Hugh Hegarty $1,500. Defendant appealed.
Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.
The judgments are affirmed.
Fletcher W. Stites, with him Henry A. Frye, for appellant. -- Where the sworn testimony of witnesses has fixed the facts of an automobile accident in a suit brought in one court, a second court should enter judgment n.o.v. in another suit where it appears that a verdict has been rendered upon the altered testimony of the same witnesses.
Where it appears from the admitted facts that it was a physical impossibility for an accident to have happened in the manner described by plaintiff's witnesses, the court below should have entered judgment n.o.v.: Lessig v. Transit & Light Co., 270 Pa. 299, 302, 304; Folger v. Rys., 291 Pa. 205, 210; Haskins v. R.R., 293 Pa. 537, 540; Maue v. Rys., 284 Pa. 599; Rhodes v. R.R., 298 Pa. 101, 107; Miller v. R.R., 299 Pa. 63, 67.
Where the evidence of plaintiffs to convict a defendant of negligence is built upon the testimony of two witnesses whose statements are contradictory, while the evidence of the defendant consists of comprehensive and unequivocal testimony of eight eyewitnesses, a new trial should be ordered where a verdict has been found against such a defendant.
Charles F. Kelley, for appellees. -- Defendant was negligent: McNulty v. Horne Co., 298 Pa. 244; Weber v. Greenebaum, 270 Pa. 382; Hugo v. R.R., 238 Pa. 594; Thomas v. R.R., 275 Pa. 579; Scalet v. Tel. Co., 291 Pa. 451.
The rule as to incontrovertible physical facts does not apply to the facts in this case: Snyder v. Penn Liberty Ref. Co., 302 Pa. 320; Schaeffer v. Transit Co., 302 Pa. 220; Peruzzi v. R.R., 99 Pa.Super. 519.
Where a case is fairly tried without any errors appearing on the record, a verdict, rendered on the conflicting evidence of witnesses whose credibility is within the province of the jury, is conclusive and will not be reviewed on appeal: Kelly v. Traction Co., 204 Pa. 623; Douds v. Traction Co., 51 Pa.Super. 24; Anderson v. Rys., 251 Pa. 517; Van v. Richmond, 259 Pa. 300; Baumgartner v. R.R., 292 Pa. 106.
Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.
On the evening of September 3, 1926, as Thomas J. Rimmer was driving his Ford car west in Haverford Street, Philadelphia, it came in contact with the Buick car of the defendant, Edna F. Berger, headed north in Thirty-eighth Street. It is a right-angle intersection and as a result of the impact the course of the Rimmer car was deflected northerly against the north curb of Haverford Street, a short distance west of the west curb of Thirty-eighth Street, where it upset upon the sidewalk, striking and injuring Mary Hegarty, the wife plaintiff, and her four-year-old daughter, who at the moment were walking thereon. The evidence was conflicting as to the cause of the accident, but in support of the verdicts and judgments for the plaintiffs, from which defendant has appealed, we must assume the truth of that in their behalf and all inferences properly deducible therefrom: Mountain v. American W.G. Co., 263 Pa. 181; Scalet v. Bell Telephone Co. of Pa., 291 Pa. 451. So doing, it appears that Rimmer was driving his car carefully and at moderate speed along the northerly half of the thirty-four-foot cartway in Haverford Street, near the north rail of the single track street railway, located in the center thereof, as the defendant's car, approaching from the south, stopped with its front near the south rail of the street car track. Then Rimmer, who had stopped his car near the east line of Thirty-eighth Street, started forward in low gear and as he came opposite the Buick, it suddenly started forward, its bumper colliding with the side of his car, so that it (the bumper) was torn off by the impact, causing the accident. This recital is supported by the testimony of Rimmer and of his mother, Mrs. Robinson, who was with him, and also by that of an officer, to the effect that the defendant there stated she was nervous and started her car forward too soon. In addition, on a former trial, defendant had testified that she started forward after the front of the Ford had passed. For the defense there was evidence that the Buick car was standing at the time of the impact and that the Ford coming onto the intersection at high speed veered sharply to the left and forcibly collided with the bumper of the standing Buick, thereby causing the accident. This evidence as to high speed finds some support from the fact that the Ford ran forty or fifty feet after the collision and then tipped over on the sidewalk. On the other hand, it is not probable that Rimmer would deliberately turn his car so as to collide with the standing Buick, or that, if he did, the bumper of the latter would strike the center and not the left front corner of the Ford. The case, taken as a whole, was one for the jury, and binding instructions for the defendant could not have been given.
True, the actions brought by Rimmer and his mother against Miss Berger for the same accident resulted in verdicts and judgments for the defendant, which we affirmed. See Robinson v. Berger, 295 Pa. 95. That being by other plaintiffs was not res judicata here. In addition, those verdicts may have rested on the ground of contributory negligence which is absent in the instant case. It may well be that negligence of the drivers of both cars joined in the accident, in which case, while one could not recover from the other, plaintiffs here, as innocent parties, could sue both or either: Hughes et ux. v. Pittsburgh T. Co. et al., 300 Pa. 55, and cases there cited (page 59); also Turton v. Powelton Electric Co., 185 Pa. 406.
Where there is affirmative evidence, even of one witness, showing negligence, the question is for the jury regardless of the strength of the opposing proof: Thomas v. P.R.R Co., 275 Pa. 579, and cases...
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