Appeals, Nos. 12 and 13, January T., 1952, from order of Court of Common Pleas of Wayne County, Oct. T., 1948, Nos. 68 and 69, in cases of Kathryn Decker v. Joseph Kulesza and William H. Gibbs and William H. Gibbs v. Joseph Kulesza. Order reversed.
I. Raymond Kremer, with him Max E. Cohen, Lester R. Male and L. B. Maxwell, for appellant.
James Rutherford and Milford J. Meyer, with them Meyer, Lasch, Hankin & Poul, for appellees.
Before Drew, C.j., Stern, Stearne, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
These actions arise out of a collision of two automobiles which occurred on July 3, 1948 at about 9 o'clock P.M. in Wayne County, Pennsylvania. At the time of the accident Joseph Kulesza was the owner and operator of one of the vehicles; William H. Gibbs was the owner and operator of the other vehicle and Mrs. Kathryn M. Decker was a passenger in Gibbs' automobile. On November 22, 1948 Mrs. Decker filed a complaint in trespass against Joseph Kulesza, whereupon Kulesza brought in Gibbs as an additional defendant. On the same day, under a separate term and number, Gibbs filed a complaint in trespass against Kulesza and thereafter Kulesza filed an answer and a counterclaim against Gibbs for his damages resulting from the accident. It was expressly agreed and stipulated that the Decker and Gibbs cases against Joseph Kulesza be tried together before the same jury in accordance with the Pennsylvania Rules of Civil Procedure, 213 (a).
Verdicts were rendered in the respective cases on behalf of plaintiff, Mrs. Decker, in the amount of $5,000 against Gibbs (alone) as additional defendant, and in favor of Kulesza, as defendant and counter-claimant in the amount of $300 against Gibbs.
Thereafter Gibbs filed a motion for judgment non obstante veredicto as against Mrs. Decker and for a new trial as to the plaintiff Decker and the defendant Kulesza; Mrs. Decker filed a motion for new trial as to both Kulesza and Gibbs. The court below refused Gibbs' motion for judgment non obstante veredicto but, for the reasons hereinafter discussed, granted the motions for new trial as between all parties. These appeals are from the grant of these motions.
Diametrically opposed versions as to how the accident happened were given. The collision occurred on Route 370 in Wayne County which runs in a general north and south direction. Prior to the accident Gibbs was traveling southward toward a curve to the left in the road and although he first testified that he "was making a left hand turn when Mr. Kulesza was coming down the other side right in my lane.", he subsequently testified that the collision occurred between 60 and 100 feet north of the curve. He said that when he saw Kulesza's car it was "Pretty near all on my side of the road."; that he stopped his car and was then well over on the berm on his side. Mrs. Decker, who was his housekeeper, corroborated him and four or five witnesses called on his behalf who arrived at the scene after the collision occurred also corroborated his account as to where the accident happened, based upon the location of the cars after the accident.
On the other hand, Kulesza, who was traveling northward, testified that the accident happened as he was rounding the curve; that he saw Gibbs' car approaching on his (Kulesza's) side of the road; that he, Kulesza, turned his car to the right; that after the collision his car was off the road with both right wheels in a ditch and the two left wheels parallel with the road ...