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KIMMEL v. YANKEE LINES

November 9, 1954

Barbara E. KIMMEL, Administratrix of the Estate of Frank C. Kimmel, Deceased,
v.
YANKEE LINES, Inc., a corp



The opinion of the court was delivered by: GOURLEY

These are Survival and Wrongful Death Actions based on negligence arising out of an automobile collision at a highway intersection which occurred in Pennsylvania.

The case was administered by jury trial.

 In answer to specific interrogatories, the jury found that decedent was free of contributory negligence and defendant's negligence was the proximate cause of the accident.

 A verdict was returned in favor of the plaintiff for $ 1,691 pursuant to the Survival Action, and $ 7,200 pursuant to the Wrongful Death Action.

 The instant motion is for a new trial and/or judgment notwithstanding the verdict.

 For purpose of brevity, plaintiff, Barbara E. Kimmel, Administratrix of the Estate of Frank C. Kimmel, deceased, will be designated as Kimmel, defendant, Yankee Lines Inc., a corporation, will be designated as Yankee and the Court of Common Pleas of Beaver County, Pennsylvania, will be designated as State Court.

 The circumstances which surround the accident are as follows:

 Kimmel had two passengers in his car as guests. He operated said vehicle on a road which intersected a through highway. After stopping his vehicle, he proceeded to cross the main highway and a collision occurred between his vehicle and a tractor trailer operated by Yankee.

 Motion for New Trial

 The general allegations are advanced that the verdict was against the evidence, the weight of the evidence and the law.

 There was ample evidence in this case to justify the jury in its finding in favor of the plaintiff. It is my duty to recognize that a court is not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions, or because the court regards another result as more reasonable. Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520; Masterson v. Penna. R. Co., 3 Cir., 182 F.2d 793.

 I have most carefully reviewed the record, and I am satisfied that the weight of the credible evidence, and inferences to be drawn therefrom, is sufficient to sustain the jury's findings.

 Motion for new trial will be refused.

 Motion for Judgment Notwithstanding Verdict Under Rule 50(b) of Federal Rules of Civil Procedure

 In connection with a motion for judgment notwithstanding the verdict or for a directed verdict, it is not the province of the court to substitute its judgment for that of the jury. The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from uncontroverted as well as controverted facts, are questions for the jury. Tennant v. Peoria & P. U. Ry. Co., supra; and where, as here, the case turns on controverted facts and the credibility of witnesses, the case is peculiarly one for the jury. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 572, 10 S. Ct. 1044, 34 L. Ed. 235; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S. Ct. 444, 87 L. Ed. 610.

 In my opinion the evidence clearly establishes negligence on the part of defendant Yankee and lack of contributory negligence on the part of the deceased, Kimmel. This fact, as heretofore stated, was found by the jury in answer to specific interrogatories.

 What has been stated is not dispositive of the motion for a directed verdict or motion for judgment notwithstanding the verdict. A much more complex and intricate problem exists under the doctrine of res judicata.

 Defendant Yankee confronts this court with a judgment entered in State Court, involving two of the parties to the instant proceeding.

 It appears that passengers in Kimmel's car had filed suit against Kimmel and Yankee in State Court as joint defendants. The jury returned verdicts against Kimmel and Yankee, but the court entered judgment n. o. v. as to Yankee and sustained the verdict against Kimmel.

 In this court the original answer of Yankee did not raise the defense of res judicata. Subsequent thereto, Yankee filed a motion for leave to file a supplemental answer as provided by Rule 15(d) of the Federal Rules of Civil Procedure, 28 U.S.C. Said motion was premised on the allegation that subsequent to the filing of the original answer the issues involved in the proceeding before this court became res judicata by virtue of proceedings in the State Court. Although the defense of res judicata was set forth in the supplemental answer as provided by Rule 8(c) of the Federal Rules of Civil Procedure, an associate member of this court denied ...


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