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EDELSON v. OCHROCH (01/04/55)

January 4, 1955

EDELSON
v.
OCHROCH, APPELLANT.



Appeals, Nos. 205, 206 and 207, Jan. T., 1954, from order of Court of Common Pleas No. 1 of Philadelphia County, June T., 1951, No. 208, in case of Samuel Edelson et al. v. Charles Ochroch and Albert Ochroch, trading as Ochroch Transportation Company and Samuel Edelson. Order affirmed; reargument refused February 18, 1955.

COUNSEL

John J. McDevitt, III, with him Norman Paul Harvey and Peter P. Liebert, III, for appellants.

Henry T. Reath, with him Richard E. McDevitt, John B. Martin and Duane, Morris & Heckscher, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 380 Pa. Page 427]

OPINION BY MR. JUSTICE BELL

Edelson and his two sisters, who were passengers in his car, brought an action against Ochroch Transportation Company and Charles Ochroch and Albert Ochroch, individually, for damages resulting from a rightangle collision at the intersection of Ridge Avenue and Wissahickon Drive in the City of Philadelphia, in which the Ochroch car struck the Edelson car, damaging it and injuring the parties-plaintiff. The defendants Ochroch brought in as additional defendant one of the plaintiffs, Samuel Edelson, who was driving the Edelson car.

There was a direct conflict of evidence; moreover, the testimony of one or more witnesses was contradictory, and as the Court below found, unworthy of belief. The jury found a verdict in favor of the Ochroch Transportation Company and the Ochrochs individually. The jury also found that "the entire negligence lies

[ 380 Pa. Page 428]

    with Samuel Edlson" and awarded damages to Ida Edelson in the sum of $12,671. and to Fanny Edelson in the sum of $700. The lower Court granted a new trial as to all defendants.

It will not be necessary to recite the facts; it will suffice to merely quote the following excerpts from the Per Curiam opinion of the lower Court:

"In the fact of these contradictions, [by Dupree, the driver of Ochroch Transportation Company's truck] it is difficult to understand how the hurry could find that defendant's driver Dupree was not negligent, that Samuel Edelson was and that the negligence of Samuel Edelson alone was the cause of the accident. Where traffic lights are controlled automatically, they do not change in so rapid a succession as in the versions of the occurrence given by Dupree. If the light was green for Edelson when he entered the intersection, he had a right to assume that Dupree would heed the traffic light against him and would not enter the intersection. Jones v. Williams, 358 Pa. 559, 562. Moreover, the evidence showed that Edelson was not relying solely on a favorable traffic light and dispensing with due care in crossing the intersection. See Lewis v. Quinn, 376 Pa. 109. On the contrary, Edelson's uncontradicted testimony showed that he looked up and down Ridge Avenue, observed the lights of a vehicle approaching from the west when it was 135 feet away, [and] that it appeared to be slowing down, ....

"While it is not the province of the court to resolve conflicts in the testimony or to usurp the function of the jury, 'it is the duty of a trial court to pass upon the weight of the evidence and to grant or withhold a new trial accordingly': Hershey v. Pittsburgh and West Virginia Railway Company, 366 Pa. 158, 162.

"We are satisfied that the verdicts reached were against the weight of the evidence ...


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