Nark v. Horton Motor Lines, Inc.

• Decision Date: 30 June 1938
• Docket Number: 243
• Citation: 331 Pa. 550,1 A.2d 655
• Parties: Nark v. Horton Motor Lines, Inc., Appellant, et al
• Court: Pennsylvania Supreme Court

1 A.2d 655

331 Pa. 550

Nark v. Horton Motor Lines, Inc., Appellant, et al

No. 243

Supreme Court of Pennsylvania

June 30, 1938

Argued May 25, 1938.

Appeal, No. 243, Jan. T., 1938, from judgment of C.P. No. 6 Phila. Co., March T., 1937, No. 2970, in case of Matthew Bernard Nark v. Horton Motor Lines, Inc. et al. Judgment affirmed.

Trespass for personal injuries. Before FLOOD, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff against defendants in sum of $20,000. Defendant appealed.

Errors assigned, among others, were various rulings on evidence.

The judgment is affirmed.

Ward C Henry, of Swartz, Campbell & Henry, for appellant.

Harry M. Penneys, with him Matthew K. Stevens, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES JJ.

OPINION

MR. MAXEY, JUSTICE.

In this action for personal injuries plaintiff recovered a verdict for $20,000 against appellant, Horton Motor Lines, Inc., and its codefendant, Walter Thomulka. Plaintiff proved injuries of a very substantial and permanent nature to his spinal column, neck and jaw, partial loss of hearing, and other incapacitating effects of the injury he sustained, rendering him totally disabled for self-support. The errors alleged relate only to the weight of the evidence as to appellant's negligence and to the admission of certain medical testimony of the injuries to plaintiff. From the refusal of a new trial Horton Motor Lines, Inc., appealed. Defendant Thomulka did not appeal.

The accident giving rise to the suit occurred early in the morning of March 11, 1937, at the point in Philadelphia where Passyunk Avenue, an east-west thoroughfare, curves northward to become 63d Street. There is no intersection at this turn and no buildings, so that an unobstructed view of the highway is had in both directions. The roadway was covered with snow and ice at the time. Plaintiff was one of five passengers in an automobile driven by defendant Thomulka. The car was proceeding west on Passyunk Avenue as it approached the turn. Thomulka put his foot on the brake to slow down and tried to round the bend to his right. Instead, the car skidded diagonally across the highway and came to a stop on the other side, directly in the path of appellant's oncoming truck moving towards Thomulka's car, in which plaintiff was seated. Appellant's driver failed to avoid striking the automobile, with a resulting head-on collision. Almost all the occupants of the car were rendered unconscious or were seriously injured.

The witness Lydon, one of the passengers, testified for plaintiff that when Thomulka applied his brakes the truck was 200 to 250 feet up the road, that the car skidded 40 or 50 feet and then came to a standstill on the other side of the road, facing the truck, which was still 100 to 120 feet away; that although the driver of the truck could have avoided the accident by turning slightly to the left, he failed to do so, and that after the lapse of a minute's time the collision occurred. Plaintiff's only other witness on the question of appellant's negligence was the codefendant, Thomulka. He said that as his car began to slide, after the brakes were applied, the truck was 100 to 110 feet away, that it was still 75 feet off when his car came to a stop on the far side of the road, and that although the truck was traveling at a speed of only 20 to 25 miles an hour its driver made no effort to stop and avoid a collision, and that the crash took place five seconds later.

If the statements so made by these witnesses under oath were credited by the jury, as the verdict indicates they were, the negligence of defendant's driver was obvious. No man has a right to continue his car or truck in motion if such motion makes an injury to another car or to any person inevitable or reasonably probable, provided, of course, such car or truck is "under control," as this truck was at the time in question. But appellant urges that the contrary testimony of its own witnesses was so strong and persuasive that the verdict for plaintiff was clearly against the weight of the evidence and hence should not be permitted to stand. A convincing preponderance of evidence in a case such as this may have persuasive weight with the trial court on a motion for a new trial. However, from the refusal of a new trial, we have uniformly held on appeal that the judgment of the court which tried the case will be accepted unless there is a clear abuse of discretion: Hostetler v. Kniseley, 322 Pa. 248, 185 A. 300; Evans v. Penn Mutual Life Ins. Co., 322 Pa. 547, 186 A. 133; Stark v. Rowley et al., 323 Pa. 522, 187 A. 509. Our examination of the record before us discloses no abuse of discretion in the instant case.

Appellant argues that the account of how the accident happened given by plaintiff's witnesses is incredible, and that no rational person in the position of appellant's driver could have deliberately watched the car in which appellee was seated come to a stop ahead of the truck without pulling to one side and thus avoiding the collision. Such conduct would be reprehensible but the reprehensibility of an act charged does not make the charge incredible. The testimony of plaintiff's...