Martin v. Arnold

• Decision Date: 21 November 1950
• Parties: MARTIN et al. v. ARNOLD et al. BREESE et al. v. ARNOLD et al. Appeals of ARNOLD.
• Court: Pennsylvania Supreme Court

77 A.2d 99

366 Pa. 128

MARTIN et al. v. ARNOLD et al.

BREESE et al. v. ARNOLD et al.

Appeals of ARNOLD.

Supreme Court of Pennsylvania

November 21, 1950

Argued September 28, 1950

Appeals, Nos. 4 and 5, March T., 1950, from order of Court of Common Pleas of Greene County, Sept. T., 1947, Nos. 82 and 83, in cases of Louis H. Martin et al. v. Lloyd R. Arnold et al. and James Franklin Breese, Jr. et al. v. Same. Order reversed; reargument refused December 28, 1950.

Trespass for personal injuries Before HOOK, P.J.

Verdicts for plaintiff parents of minor Martin in sum of $500., and in favor of plaintiff minor in sum of $1,300. and in favor of plaintiff parents of minor Breese in sum of $1,500., and in favor of plaintiff minor in sum of $5,000., and against all defendants; new trial ordered as to additional defendants. Original defendant appealed.

The order awarding a new trial is reversed and the record remanded for entry of judgments on the verdicts.

Rufus S. Marriner, with him Montgomery, Thompson &amp Baily, for appellant.

A J. Marion and John I. Hook, Jr., with them Smith, Marion & Balaban and Scott & Hook for appellees.

Before DREW, C.J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.

OPINION

MR. JUSTICE CHIDSEY

Louis H. Martin, and James Franklin Breese, Jr., instituted these actions in trespass against Lloyd R. Arnold, original defendant, to recover for damages sustained when Arnold collided with a school bus operated by Robert Ely and owned by Russell McKee. Ely and McKee were joined as additional defendants. Arnold appeals from the orders of the court below awarding a new trial to additional defendants, asserting a manifest abuse of discretion.

Lloyd R. Arnold, appellant, between 4:00 and 4:30 p.m., on April 5, 1946, was operating a 1935 Ford V-8 panel truck on State highway route Nos. 18 and 21 near Crouse's School House in Centre Township, Greene County. The day was clear and the concrete highways in excellent condition. Preceding him in the same direction was a school bus operated by Robert Ely and owned by Russell McKee, additional defendants. At a point in the highway where Rush Run Road intersects with the aforementioned highway, the highway curves to the right. The school is on the left. The highway at the point of collision is 18 feet wide.

Arnold testified that he followed the bus at a speed of 20 to 28 miles per hour, but as the bus passed a concrete bridge it slowed down to a speed of approximately 3 to 4 miles per hour, veering to the right as if intending to stop; that he, Arnold, then sounded his horn to pass to the left and increased his speed; that as he came alongside of the bus it suddenly and without any warning, mechanical or manual, turned left in front of him; that he eased further to the left but finally came into contact with the bus immediately in back of the cab; that as a result of the impact he lost control of his truck; and, that it proceeded across the intersection into a group of school children causing injury to the minor plaintiffs. Willard Brownlee who was a passenger in Arnold's truck, corroborated his testimony in detail.

Robert Ely, driver of the school bus, stated that, realizing his mechanical signal device in the rear was not in working condition after he passed the concrete bridge he drove his bus in the center of the highway, straddling the center line, and thus preventing a pass to his left; that he did not give any signal indicating that he was stopping or turning; that he had previously observed Arnold's truck to his rear, but did not look again for 400 feet before the collision; that he did not see it thereafter, nor did he look to determine whether any car was approaching from the rear.

The cases were consolidated for trial before a jury which returned a verdict against Arnold, defendant, and Ely and McKee, additional defendants. Each defendant filed motions for a new trial and for judgment non obstante veredicto . At argument before the court below, Arnold's motions were withdrawn. The court denied additional defendants' motion for judgment non obstante veredicto, but granted a new trial, whereupon Arnold took these appeals.

Appellant contends that the court below abused its discretion in granting a new trial as to the additional defendants for the reason that the testimony with regard to the cause of the accident was conflicting and, therefore, determination of the proximate cause of the accident was for the jury and not the court, and the action of the court below amounted to usurpation of the functions of the jury.

Appellee contends that the court below properly held that the verdict against the additional defendants is contrary to the weight of the evidence. We are constrained to hold that there was an abuse of discretion in awarding a new trial to the additional defendants.

An order awarding a new trial will not be reversed on appeal unless a palpable abuse of discretion on the part of the court below is clearly shown, or unless an erroneous rule of law which in the circumstances necessarily controls the outcome of the case is certified by the court below as the sole reason for its action: Tupponce v. Pennsylvania Railroad Company , 358 Pa. 589, 590, 57 A.2d 898. Where as in the instant case, the court below has concluded that the verdict of the jury is contrary to the weight of the evidence and that the interests of justice require granting of a new trial, this Court is most hesitant to disturb such conclusion: Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 276, 64 A.2d 829. However, the power...