W. Albert Ramey, Clearfield, for appellant.
J. J. Pentz and Pentz and Silberblatt, Clearfield, for appellee.
Before Rhodes, P. J., and Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 245]
This is an appeal by the plaintiff in a trespass action from the granting of a new trial after a jury verdict in his favor.
The action arose out of a railroad crossing collision between a truck owned and operated by the plaintiff and defendant's train. The collision occurred on January 26, 1948. The plaintiff averred that as a result of defendant's negligence he suffered personal injuries and damages to his 1947 Dodge truck. The jury returned a verdict in his favor for damages to the truck, defendant's motion for judgment n. o. v. was refused but its motion for a new trial was granted and the plaintiff took this appeal.
[ 167 Pa. Super. Page 246]
As a defense to the action, the defendant, in addition to denying negligence, set up a release executed by the plaintiff on February 19, 1948, which reads in part as follows: 'For the sole consideration of Three Hundred Fifty and no/100 Dollars received to my full satisfaction from the New York Central Railroad Company I hereby release and discharge the said The New York Central Railroad Company * * * from all claims, demands, grievances and causes of action of every kind whatsoever and including, but without limitation of the foregoing, all liability for damages of every kind, nature or description now existing or which may hereafter arise from or out of injuries and damages, received by me and damage to my 1947 Dodge Pick-up auto truck at or near Bridgeport, State of Pennsylvania, on or about the 26th day of January 1948. * * * this release does not include nor cover damage to automobile truck as covered by Policy of the Moore-Wilson & Company at Clearfield, Pennsylvania.'
At the trial of the case, the defendant offered the release in evidence but the trial judge sustained an objection to its admission, at the same time stating to the jury that the offered -- but not accepted in evidence -- release 'takes everything away from you expect damages to the truck. * * * and that narrows the issue down just to the damages to this truck, assuming that the defendant was negligent, of course.'
In granting a new trial, on the ground that he had erred in excluding the release, the trial judge stated: 'We interpreted the words 'covered by the policy of Moore Wilson & Company' * * * as being descriptive of the truck. * * * On reflection, we feel these words are descriptive of the word damage, and not the word truck; and that Elmer N. Jury released all damages except the damages that were covered by the policy of insurance, for he first stated, all damages to himself personally, and to his 1947 truck; then followed the words 'that this
[ 167 Pa. Super. Page 247]
release does not include nor cover any damage to automobile truck as covered by policy of Moore, Wilson & Company at Clearfield, Pa.' If the words 'as covered by policy of Moore, Wilson & Company' were intended to refer to the truck and not to the word 'damage', then there would be no reason for having written into the release that he did release damage to himself personally, as well as damage to his truck.' The trial judge, therefore, concluded that the release was admissible and that the ...