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KEATING v. BELCHER. (01/12/56)

January 12, 1956


Appeal, No. 341, Jan. T., 1955, from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1952, No. 6205, in case of Frank Keating v. William H. Belcher. Judgment affirmed; reargument refused January 31, 1956.


Nochem S. Winnet, with him Charles M. Solomon and Fox, Rothschild, O'Brien & Frankel, for appellant.

Thomas Raeburn White, Jr., with him White, Williams & Scott, for appellee.

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

Author: Bell

[ 384 Pa. Page 130]


Plaintiff sued in trespass to recover for the very severe injuries he received in a collision between a motorcycle on which he was a passenger, and an automobile operated by Harold Crew, who is not and never was a party to this action. The jury returned a verdict in favor of the defendant, the Court below refused to grant a new trial, and the plaintiff thereupon took this appeal.

Jensen, the driver of the motorcycle, was driving in a northerly direction on Limekiln Pike in Upper Dublin Township, Montgomery County. The Pike at the point where the accident occurred was straight for three-quarters of a mile. The road varied in width from 18 to 21 feet and was divided by a white line in the center. Jensen's motorcycle was following defendant's automobile, which was on the proper side, namely, the right hand side of the road, and proceeding north on Limekiln Pike. Plaintiff testified that Jensen blew his horn to signify his intention of passing defendant, who was driving about 40 miles an hour; that defendant then

[ 384 Pa. Page 131]

    waved to Jensen to come by; that when Jensen was five or six feet to the rear of defendant's car and had pulled out to pass, defendant's car drifted to its left - although still remaining on his own side of the road - thus causing a collision between some part of the motorcycle and the left rear fender of defendant's automobile, as a result of which the motorcycle collided with the left side of Crew's car coming in the opposite direction. Crew's car was on his proper side of the road.

Defendant and a passenger in the south bound automobile (Crew's car) denied that defendant's car swerved in any manner. The driver of Crew's car testified on behalf of the plaintiff, but did not materially aid plaintiff's case. Defendant denied that he ever waved his hand or signaled to Jensen to pass him, although at best for plaintiff this would be an invitation to pass when safe, and not a command to pass or an all-clear signal. Cf. Lewis v. Quinn, 376 Pa. 109, 113, 101 A.2d 382. Defendant further testified that the motorcycle was behind him and not alongside of his car when it ran into Crew's car.

Plaintiff's testimony at the trial differed substantially from the signed statement he gave a police officer at the hospital after the accident. The signed statement, incidentally, made no reference to any waving of the hand or similar signal by the defendant nor was any such signal seen by any other witness. Plaintiff at the trial denied knowledge of his signed statement and also denied his signature thereto. It is clear from the verdict that the jury must have believed defendant and the witnesses who testified in his favor. The negligence of Jensen, the driver of the motorcycle, was so obvious and flagrant, and the negligence of the defendant so doubtful or non-existent, that it is clear that the jury brought in the only verdict which it justly could have rendered.

[ 384 Pa. Page 132]

Appellant makes the oft heard complaint that the trial Judge was unfair and was prejudiced against his case, and that the testimony of the other side was emphasized in the Court's charge, while his case or the testimony of his witnesses was lightly or sketchily or disparagingly treated, and consequently he was denied a fair trial. Everyone in the Commonwealth of Epnnsylvania is of course entitled to a fair and impartial trial, but that does not mean that a trial Judge must be "a mere moderator": Welsbach v. Phila., 318 Pa. 166, 170, 178 A. 126. A Courtroom is a Court of Justice and not just a battleground for the tilting of attorneys or a testing of their wits and oratory - to so limit it would often jeopardize or defeat Justice. Judges should, within reasonable limitations, allow attorneys to try their own cases; they should refrain from extended examination of witnesses; they should not unnecessarily interrupt or rudely treat witnesses or counsel; and they should not, unless the facts of the particular case and the interest of Justice warrant it, express an opinion on the merits of the case or the witnesses' credibility; and if they do so they must clearly explain to the jury that the facts and the credibility of the witnesses and the truth or falsity of their testimony is a matter solely for the jury. The Judge should also bear in mind that undue interference with the trial of a case and undue emphasis of one side of the case or intemperate treatment of witnesses or counsel are not in the interest of Justice. Cf. Commonwealth v. Myma, 278 Pa. 505, 123 A. 486; Welsbach v. Phila., 318 Pa., supra. However, it is equally true that the facts in a particular case and the interest of Justice, which is paramount, may justify and sometimes may require a trial Judge to express his opinion of the credibility of witnesses or of the implausible story they fabricate or tell, and in such circumstances he is privileged to do so - provided there is reasonable

[ 384 Pa. Page 133]

    ground for his comments and he clearly and unquestionably impresses on the jury that it is their understanding and recollection of the facts and their judgment of the witnesses' testimony and the witnesses' credibility which prevails.

In Commonwealth v. Patskin, 372 Pa. 402, 421, 93 A.2d 704, we said: "In Commonwealth v. Chambers, 367 Pa. 159, 79 A.2d 201, this Court said, (page 164): 'It is the exclusive province of the jury, not the court, to decide all the facts, the inferences therefrom, the credibility of the witnesses and the weight and effect to be given to all of the testimony. While the main purpose of a judge is to state and explain the law and briefly review the evidence, it is always the privilege and sometimes the duty of a trial judge to express his own opinion, including his opinion of the weight and effect of the evidence or its points of strength and weakness or even the guilt or innocence of the defendant and the verdict which, in his judgment, the jury should render, provided (1) there is reasonable ground for any statement he may make; and (2) he clearly leaves to the jury the right to decide all the facts and every question involved in the case, regardless of any opinion of the court thereon: Commonwealth v. Cunningham, 232 Pa. 609, 611, 81 A. 711; Commonwealth v. Foster, 364 Pa. 288, 293, 72 A.2d 279; Commonwealth v. Simmons, 361 Pa. 391, 407, 65 A.2d 353; Commonwealth v. Watts, 358 Pa. 92, 97, 56 A.2d 81; Commonwealth v. Jones, 341 Pa. 541, 551, 19 A.2d 389; Commonwealth v. Nafus, 303 Pa. 418, 420-1, 154 A. 485.'" Commonwealth v. Chambers, 367 Pa., supra, was also quoted with approval in Commonwealth v. Kloiber, 378 Pa. 412, 416, 106 A.2d 820, and in Commonwealth v. Lance, 381 Pa. 293, 297, 113 A.2d 290.

While the aforesaid rule was laid down in murder cases, it is equally applicable in civil cases where money

[ 384 Pa. Page 134]

    instead of a man's life is involved. However, the trial Judge's right to express his own opinion should be exercised, we repeat, only when the facts warrant in and Justice will thereby be aided. Moreover "Judges should never forget that 'the first and most essential element in a jury trial is a wise, learned, impartial and competent judge.'": DiBona v. P.T.C., 356 Pa. 204, 216, 51 A.2d 768.

From a reading of the bare record, we cannot say that the trial Court committed reversible error either in the conduct of the trial or in its charge to the jury.


Judgment affirmed.


In all my 20 years as a trial judge, 10 years as a trial lawyer, and 4 years on the appellate bench, I doubt that I ever heard or read more effective speech for the defendant in a negligence case than the one which appears in the record in the case at bar - the one delivered by the Honorable JOSEPH L. KUN of the Court of Common Pleas of Philadelphia County. The speech is a masterpiece in its partisan appeal under the guise of juristic logic, in its call for a unilateral verdict in the name of impartiality, and its appeal to a single track of thinking over a double track of argumentation.

From the moment that the plaintiff, Frank Keating, hobbled into Judge KUN'S courtroom on his crutches he had no more chance of gaining a verdict than he has of ever seeing his shortened leg re-grow to its pre-accident length. I will direct attention first to the Judge's charge and then take up his attitude throughout the trial which reflected a bias against the plaintiff's case which was as obvious as it was unjust and as intransigent as it was uncalled-for.

[ 384 Pa. Page 135]

The facts of the lawsuit briefly are as follows: On October 6, 1951, the plaintiff Keating was a passenger on a motorcycle being operated by Edward Jensen in a northwardly direction on Limekiln Pike in Upper Dublin Township, Montgomery County, at a speed of about 40 to 45 miles per hour. On the same highway, and at a similar speed, proceeding in the same direction ahead of the motorcycle, the defendant William H. Belcher was driving a Packard automobile. Intending to pass the automobile, Jensen twice sounded his horn, whereupon, according to Keating, Belcher waved to Jensen to come ahead. Jensen denied that he so waved. What actually happened at the exact time of the accident became the issue of fact at the trial. The plaintiff contended that at the moment Jensen began to pass Belcher, Belcher turned to the left, the left rear of his car coming into contact with the front of the motorcycle which lost balance and was struck by another car (a Buick) coming from the opposite direction. As the result of the collision Jensen was killed and the plaintiff sustained grave injuries whose harrowing details need not be described here. The defendant, as indicated above, denied that he motioned Jensen to come ahead and he testified also that he was entirely unaware of the motorcycle behind him until he heard a crash and saw the motorcycle and two persons flying through the air.

The resulting factual issue was a simple one. The plaintiff maintained that the defendant, without warning, swerved to the left into the motorcycle's path after he had invited the motorcycle to proceed forward. The defendant insisted that he did not move into the motorcycle's way, but that presumably the motorcycle driver carelessly ran into the rear of his car. If the accident happened as described by the plaintiff, he was entitled to a verdict; if it happened as the defendant narrated

[ 384 Pa. Page 136]

    it, the defendant was due the verdict. According to the Judge's charge, however, the jury was to reject the plaintiff's claim, regardless of ...

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