Luckenbach v. Egan

• Decision Date: 25 May 1965
• Citation: 210 A.2d 264,418 Pa. 221
• Parties: Margaret C. LUCKENBACH, Appellant, v. Edith EGAN.
• Court: Pennsylvania Supreme Court

210 A.2d 264

418 Pa. 221

Margaret C. LUCKENBACH, Appellant, v. Edith EGAN.

Supreme Court of Pennsylvania.

May 25, 1965.

Alexander A. DiSanti, Upper Darby, for appellant.

John S. J. Brooks, Media, for appellee.

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

MUSMANNO Justice.

Margaret C Luckenbach, the plaintiff, was injured while riding in an automobile with the defendant, Edith Egan, who was driving. Because of another car which pulled out in front of the Egan car, the defendant suddenly applied her brakes and the sudden stoppage threw the plaintiff against a metal standard to her injury. She brought suit in trespass against Egan and the jury returned a verdict for the defendant. The plaintiff seeks a new trial.

In his charge to the jury the Trial Judge said:

'It will be your obligation to decide which side you are going to believe, because, if you believe the plaintiff, the plaintiff must recover; if you believe the defendant, the defendant must recover; you cannot take part of the plaintiff's story and put it over in the defendant's story, nor can you take part of the defendant's story and put it in the plaintiff's story.'

This instruction was in error. The plaintiff had testified that the automobile was traveling eastwardly on Parkside Avenue in Philadelphia at a speed of 40 to 45 miles per hour in a 35-mile speed limit zone, that she warned the defendant to 'take it easy,' and that as they approached Paxon Street intersecting Parkside, a car parked on the south side of Parkside side west of Paxon Street pulled out from the curb in front of the Egan car.

The defendant testified that the accident happened on Parkside just west of 51st Street, also intersecting Parkside. She denied the speed stated by the plaintiff and declared, on the other hand, that she was traveling at the rate of only 20 to 25 miles per hour. She also refuted the statement of the plaintiff that the latter had told her to 'take it easy.'

The Trial Judge, in denying plaintiff's motion for a new trial, said:

'The question at issue, put as simply as possibile, is what was the speed of defendant's car at Parkside Avenue, near Paxon Street, and what was the speed at 51st and Parkside, a square and a half away. The only answers to this question comes from the plaintiff in regard to Parkside Avenue and Paxon Street and from the defendant as to 51st and Parkside.'

From this the Judge assumed that it was impossible to reconcile the plaintiff's and the defendant's testimony and that, therefore, one or the other of the parties was wholly in error. But there is no reason why the jury could not believe that the accident occurred at the spot identified by the defendant but that even at that spot she was traveling at the prohibitive speed declared by the plaintiff. The plaintiff could have been mistaken as to where the other car entered into Parkside Avenue but remembered accurately the speed at which the defendant was driving at that particular time.

In Greene v. City of Philadelphia, 279 Pa. 389, 392, 124 A. 134, 135, this Court said:

'[W]here in one part of plaintiff's testimony she is entitled to have the case submitted to the jury and in another part she is not, it is for the jury to reconcile the conflicting statements and determine which shall prevail.'

We affirmed this rule in Pascale v. Simmons, 406, Pa. 476, 482, 178 A.2d 549.

It is no longer the law that if the jury finds one part of a witness's testimony unacceptable, the entirety of his testimony must be rejected. In Commonwealth v Parente, 184 Pa.Super. 125, 133 A.2d 561, (affirmed in ...