N. Horace Berman, Howard Richard, Upper Darby, for appellant.
Raymond E. Larson, Media, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 230]
The plaintiff has appealed from an order of the court below granting a new trial after a jury verdict in its favor. We will not reverse such an order unless there is a clear error of law or a palpable abuse of discretion. Thomas v. DeSabato, 168 Pa. Super. 586, 80 A.2d 862. For a recent, clear and concise exposition of the principles governing appellate review of an order granting a new trial, see Bellettiere v. City of Philadelphia, 367 Pa. 638, 81 A.2d 857.
The appeal arises out of a trespass action brought by Kowalsky's Express Service, a corporation, against Haverford Township, to recover damages resulting from a collision between plaintiff's tractor-trailer and a truck owned and operated by the defendant township.
After a verdict was returned in favor of the plaintiff in the amount of $1,901.32, the defendant filed motions for judgment n.o.v. and for a new trial. After argument before the court en banc, the motion for judgment n.o.v. was dismissed but a new trial was ordered. From the order granting the new trial this appeal was taken.
The evidence, insofar as it is pertinent, may be summarized as follows: The collision which gave rise to this action occurred in Haverford Township, Delaware County, at a point where a private road known as 'Incinerator Road' enters from the south the West Chester Pike, which runs generally east and west. On May 27, 1949, at about 10 A.M., a day on which the roads were dry and the weather clear, the plaintiff's tractor-trailer was being operated by one of its employes, Dominic DeMore, in an easterly direction on
[ 170 Pa. Super. Page 231]
the West Chester Pike. At the same time the defendant's truck, driven by one Carter, was proceeding north on the private road toward the West Chester Pike.
The plaintiff's version of the events which immediately preceded the collision was to the effect that its tractor-trailer approached the intersection at a speed in excess of thirty miles an hour. DeMore testified that he was driving 'between thirty, thirty-five' miles an hour, 'about thirty-five', 'thirty to thirty-five miles an hour'. The legal speed limit for the plaintiff's trailer-truck is thirty miles an hour. Act of May 1, 1929, P.L. 905, as amended, sec. 1002, 75 P.S. § 501. Consequently, if the plaintiff's trailer-truck was operated in excess of the statutory limit, it was negligently operated. Com. v. Pennzoil Co., 358 Pa. 221, 56 A.2d 93; Landis v. Conestoga Transportation Co., 349 Pa. 97, 36 A.2d 465. DeMore testified that he saw the defendant's truck emerge from behind some trees when he was about sixty feet west of the intersection and the defendant's truck about eight feet south of it; and finally, that the defendant's truck entered upon the West Chester Pike at a speed of twenty miles an hour without having stopped.
Carter, the defendant's driver, testified that the plaintiff's tractor-trailer was traveling at a speed of fifty-two miles an hour; that when he first observed it, it was 380 feet from the intersection and that he entered the Pike at a speed of only three miles an hour. At the time of the accident, and for more than two years prior thereto, a 'stop sign', regular in size, design and coloring, was located on the private road ...