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July 14, 1949


The opinion of the court was delivered by: DELEHANT

In this action to recover damages for personal injuries consequent upon his being struck, while he was a pedestrian, by an automobile owned and being operated by the defendant, the jury, on April 13, 1949, returned a verdict for the defendant, upon which the court directed the entry of judgment. Although it is not relevant to the present issue, the court realizes, and here observes, that, in consequence of the collision, the plaintiff sustained severe, expensive and disabling injuries, some of the effects of which may well be permanent.

The plaintiff has seasonably served and filed a motion for a new trial, together with the specification of supplemental grounds for its allowance, in which (omitting certain points which are not argued and are without support in the record) three separate grounds are assigned. Those are:

 2. Fundamental errors in the court's charge, not in disregard of any requested instructions or excepted to upon the trial; and

 3. Newly discovered evidence.

 Counsel for the respective parties have assisted the court in its study of the motion by the provision of a complete transcript of the record of the trial, and by the submission of exhaustive briefs in which they have discussed the evidence and the law which they severally conceive to be instructive and controlling on this occasion. And it is only fitting that the court should also make grateful acknowledgment of their careful and efficient service in the trial of the cause. The transcript of evidence, the pleadings in the case, and the briefs, together with the authorities cited therein have received the careful consideration of the court.

 As counsel for the plaintiff indicates in his brief, the writer of this memorandum has lately had occasion closely to examine the subject of the duty of a trial judge in the federal judicial system, in the consideration of a motion for a new trial with particular reference to the contention that the verdict is against the great weight of the evidence or against all of the credible evidence. The results of that study were set down in Rice v. Union Pacific Railroad Co., D.C. Neb., 82 F.Supp. 1002, 1003, 1004 which the plaintiff cites and to the relevant portion of which reference is now made without the needless repetition of its contents. It may sufficiently be observed that the court is respectfully mindful of, and disposed to follow, the counsel upon that problem of Judge Parker in Garrison v. United States, 4 Cir., 62 F.2d 41, 42.

 But in its present administration of that rule, this court cannot agree with the plaintiff that the evidence upon the trial reveals such a great probative weight in his behalf that the jury's adverse appraisal of it should be rejected or overturned; or that the evidence in the defendant's behalf is shown convincingly to be incredible.

 There was no such numerical superiority of witnesses in support of either party upon the issue of liability as would, of its own force, suggest or control the tenor of the jury's verdict. For the plaintiff, besides his own testimony, one Albert Verdon was a witness. The plaintiff's personal testimony supported his version of the incident but he was necessarily uncertain, and in a large measure silent, respecting the exact details of the collision between the automobile and his person, for he appears not to have observed the vehicle before the impact. Verdon, testifying as the operator of an automobile following the defendant in the course of traffic but stopped for the time by a traffic signal at the intersection East of the site of the injury, stated that he had a momentary observation of the plaintiff walking on the shoulder of the highway, but in what direction he could not tell, almost immediately before the car and he came into contact, and the defendant's vehicle proceeded off the left margin of the pavement with both of its left wheels, as he recalled. The defendant's testimony was in sharp conflict with that of the plaintiff and Verdon.

 A problem in the credibility of witnesses and probative value of testimony was clearly presented to the jury. In that connection it is necessary to observe that the jury might intelligibly have regarded Verdon's testimony with considerable doubt. Several factors could have prompted it, among which may be mentioned suggestively, but not exclusively, his bearing and manner of testifying as a witness, his own position in his automobile paused before a stop light at an intersection and presumably attentive primarily to the awaited signal change which would allow him to proceed, the distance ahead of him at which the challenged event occurred, which was at least one hundred fifty feet and probably not far from two hundred feet, and the undoubted intervening visual obscurity at about 6:15 o'clock on a mid-October evening.

 The court is, therefore, persuaded not only that a case was presented for submission to the jury, but also that its verdict in the defendant's favor is adequately supported by the evidence and is not contrary to its great, or manifest, weight. Nor can the court assent to the plaintiff's argument that the defendant's essential evidence upon the issue of liability is not entitled to credence by the jury. It is neither intrinsically incredible nor demonstrated by any circumstance to be unworthy of belief.

 In the plaintiff's brief there is a suggestion of the intrusion of passion and prejudice into the jury's verdict. But there is no conceivable warrant for it. Nothing occurring upon the trial could possibly support it. It is irrational to suppose that bias was inspired in any juror by the somewhat accented speech of the plaintiff as a witness, which suggested his probable foreign birth. And a reference in that brief to the wearing down of jurors during their deliberation to coerce agreement is both wholly unsupported factually and conclusively rejected by the record which shows that, including its lunch period the jury was engaged in its final study from 11:41 a.m. to 4:00 p.m., on the same day, only four hours nineteen minutes.

 The assignment of fundamental errors in the court's charge has been examined in careful detail but is not believed to be at all well taken. There was no request by either party for specific instructions to the jury. Moreover, the charge as actually imparted to the jury, of whose essential content, though not its precise verbiage, counsel were informally advised before argument, was not excepted to by either party. And the nature of the asserted 'fundamental errors' (as reflected both in the motion as originally served and filed and in the specification of additional reasons) prompts the court to make notation of a matter which is not a part of the record, but will, as the court thinks, be unquestioned by counsel for either party. The basic errors are said to lie chiefly in the fact that the court did not instruct the jury upon several items of statutory or decisional Pennsylvania law on the general subject of the operation of motor vehicles within the state. Now, the writer of this memorandum, having observed in an examination of the pleadings the assignment of 'violating the motor vehicle code of Pennsylvania' as a specification of negligence in paragraph 3(e) of the complaint, and being conscious of his own unfamiliarity with that code or any judicial decisions which may be pertinent to it, conferred informally before the opening of the trial with counsel for both parties. In that conference the writer directed counsels' attention to the allegation and to the immediately following specification of 'Negligent at law', and to his own want of knowledge of local Pennsylvania law, and requested that if any local law, statutory or judicially erected, were relied ...

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