to disagree. Bauer, Adm'x, v. Sacks, Appellant, 355 Pa. 488, 50 A.2d 351.
The plaintiff testified that the driver of the truck was operating the same a little to the left from the center of the highway and there was ample room or space to pass it safely, and that the accident was caused solely due to the truck being suddenly turned to the left, striking the right rear of plaintiff's automobile. It is true that in other parts of the testimony offered by the plaintiff inconsistent statements to some extent appear. The testimony offered by defendants is in direct contradiction to that presented by plaintiff. As a result of which, under the plaintiff's testimony fair and reasonable persons can disagree or draw different inferences as to the actions of the plaintiff. The Court cannot declare the plaintiff under the circumstances to have been guilty of contributory negligence as a matter of law.
The burden of proof, therefore, rested on the defendants to establish contributory negligence on the part of the plaintiff by the fair preponderance or the weight of the evidence. A person is not necessarily guilty of contributory negligence because he does not take the safer of a choice of ways unless the danger is so clear that an ordinary prudent person would regard it as dangerous. Since the facts and circumstances are not free from doubt, the Court cannot declare contributory negligence to exist in this case as a matter of law. Schaut v. St. Marys' Borough et al., 141 Pa.Super. 388, 14 A.2d 583; McFadden v. Pennzoil Co., Appellant, 341 Pa. 433, 19 A.2d 370.
It is the duty of the Court in passing upon the motion to set aside the judgment rendered in favor of the plaintiff to consider the testimony in a light most advantageous to the plaintiff. All conflicts therein must be resolved in the plaintiff's favor, and the plaintiff must be given the benefit of every fact and inference of fact pertaining to the issue involved which may be reasonably deduced from the evidence. Flowers v. Dolan, Adm'x, Appellant, 155 Pa.Super. 378, 38 A.2d 429; Bauer, Adm'x, v. Sacks, Appellant, supra; Cyclopedia of Federal Procedure, 2nd Edition, Vol. 8, Section 3463, p. 124; Sprencel v. United States, 5 Cir., 47 F.2d 501, 505; Brunswick-Balke-Collender Co. v. Foster Boat Co., 6 Cir., 141 F.2d 832; Worcester et al. v. Pure Torpedo Co., 7 Cir., 140 F.2d 358; Hellweg v. Chesapeake & Potomac Telephone Co., 71 App.D.C. 346, 110 F.2d 546.
The Court is not free to weigh the evidence and set aside the jury verdict because the jury could have drawn different inferences or conclusions, or because the Court regards another result more reasonable. Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520.
In view of the above matters a situation exists where the credibility of the testimony offered by the plaintiff and her selection to not call a witness, who appeared in her behalf at the first trial, became an important matter for the consideration of the jury. In this respect the Court instructed the jury with considerable thoroughness as to the rules which should be applied in passing upon the credibility of a witness and reconciling any inconsistencies which might appear in the testimony, and select that which they find to be true or disregard that which they find to be untrue. It is evident that the jury in its verdict was able to reconcile the inconsistencies and, therefore, accepted that part of the testimony offered by the plaintiff which established negligence on the part of the defendant, and lack of contributory negligence on her part.
The circumstances in this case, therefore, require the application of the rule that if, on one part of plaintiff's testimony or that of a witness, plaintiff is entitled to recover, or have the case presented to the jury, and on another part she is not, the jury must reconcile such conflicting statements and say which shall prevail. A question of fact was, therefore, presented for the jury since reasonable and well-balanced minds might differ on the matter as to the truth of the statements made by the plaintiff. Cardone v. Sheldon Hotel Corp., 160 Pa.Super. 193, 50 A.2d 700.
The defendants in connection with each of said motions do not raise any question as to the admission or rejection of any evidence, no error of law is charged, nor has any argument been made as to the unreasonableness of the verdict.
I believe that the case was fairly and thoroughly presented to the jury under proper instructions from the Court, and under the evidence the question of the defendants' negligence and the plaintiff's contributory negligence was properly submitted to the jury. The motion to set aside the verdict and judgment entered in favor of the plaintiff against the defendants is refused, and the motion for a new trial is refused.
An appropriate order will be filed.
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