Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
On July 3, 1954 at Oxford Circle on Roosevelt Boulevard in northeast Philadelphia the car of the plaintiff Bell and the car of the defendant Mykytiuk collided. The plaintiff instituted suit for personal injuries and property damages and the defendant counterclaimed for damages to his car. Jurisdiction is based on diversity and the law of Pennsylvania, of course, governs.
At the trial the plaintiff testified that he was proceeding around the circle in the far right hand lane at a speed of from 18 to 20 miles an hour when his car was struck on the left rear fender by the defendant's car. Bell stated that he had not turned into any other lane or overtaken the defendant's car; that he did not see the defendant's car until it had struck his left rear fender; and that the force of the collision turned his car around heading it in the opposite direction. The testimony of Mrs. Bell,*fn1 a passenger in her husband's car, corroborated this description of the collision.
A park Guard, Capriotti, who witnessed the accident was called by the plaintiff. Capriotti testified that the plaintiff's car was traveling 25 to 30 miles an hour in the middle lane of the Circle when the defendant's car came around the Circle to the plaintiff's car's left and caught the plaintiff's car's left rear fender or bumper and turned the plaintiff's car around. Capriotti stated that on questioning the defendant immediately after the accident the defendant told him that the plaintiff had cut in front of his car.*fn2 On cross-examination Capriotti was asked whether the plaintiff swerved left in front of the defendant and Capriotti replied, "I wouldn't say that he did."*fn3 Capriotti was then shown a signed statement which he had given to a representative of the defendant's insurance company on November 11, 1954. The statement described the plaintiff as pulling to the left in front of the defendant's car, and the plaintiff's car as striking the defendant's car. Capriotti said that the statement was his best recollection in November of 1954 as to how the collision occurred.*fn4
On redirect examination Capriotti identified his official report made the day of the accident. The report states that the defendant's car hit the left rear fender of the plaintiff's car which was in front because the defendant made too close a left turn.*fn5 Capriotti admitted that he did not have the report to refer to at the time he signed the statement given by him to the representative of the defendant's insurance company in November.
The defendant did not testify and offered no testimony as to how the collision occurred. He introduced evidence to contradict the plaintiff's evidence concerning his injuries and loss of earnings.
The jury found both the plaintiff and the defendant negligent. A verdict was returned for the defendant in the plaintiff's suit and a verdict for the plaintiff was returned on the defendant's counterclaim.
The plaintiff filed a motion for a new trial, arguing, among other points, that the verdict was against the weight of the evidence. The court below denied the motion. D.C.1957, 147 F.Supp. 315. The court concluded that, "This jury could have properly decided that there was no irreconcilable conflict between Capriotti's official report and his subsequent statement to defendant's representative," and that even if Capriotti's report and statement were regarded as inconsistent the jury could have believed other testimony which would place the plaintiffs' credibility in doubt and that the jury's verdicts were not necessarily against the weight of the evidence. Id. at page 317.
The issue before us is whether the court below erred in refusing to grant the defendant a new trial. In determining this issue we are limited to considering whether there was substantial evidence to support the jury's verdict. Miller v. United States, 3 Cir., 1943, 137 F.2d 592; Magee v. General Motors Corp., 3 Cir., 1955, 220 F.2d 270.
Under Pennsylvania law a new trial is a proper remedy where a verdict rests largely on the testimony of a single witness who is strongly contradicted by other witnesses and discredited by his own prior inconsistent statements.Pearson v. A. W. Funk & Co., Inc., 1934, 315 Pa. 402, 403, 172 A. 674, 675; Cuteri v West Penn Railways Co., 1931, 305 Pa. 347, 350, 157 A. 686 and Thomas v. Pennsylvania R. Co., 1923, 275 Pa. 579, 583-584, 119 A. 717, 719. Was Capriotti's evidence strongly contradicted by other witnesses and discredited by his own prior inconsistent statements? We cannot agree that it was. The evidence offered by the plaintiff as to how the accident occurred differed from the version given by Capriotti, but the plaintiff's credibility generally was rendered doubtful because of testimony of the defendant's witnesses relating to the plaintiff's injuries, physical condition and loss of work. The defendant's witnesses strongly contradicted the plaintiff's evidence on these points. Were the three statements made by Capriotti, (1) that made immediately following the accident, (2) that made on November 11, 1954,*fn6 and (3) the statements made during the course of the trial, set out in full in this opinion or in the notes hereto, inconsistent? They must be examined as to their bearing on two factual items: who hit whom, and whether the plaintiff's car swerved to the left into the defendant's lane and therefore into his car. As to the first item, Capriotti's official report states that the defendant's car hit the plaintiff's car;*fn7 his November 11, 1954 statement describes the plaintiff's car as striking that of the defendant;*fn8 and finally Capriotti's testimony at the trial as to this point is none too clear.*fn9 As to the second item, Capriotti's official report contains nothing specifically relating to it;*fn10 his November 11, 1954 statement describes the plaintiff's car as pulling to the left in front of the defendant's car;*fn11 at the trial when Capriotti was asked whether the plaintiff turned to the left in front of the defendant, he replied, "I wouldn't say that he did * * *."*fn12
As pointed out by the court below the issue of who hit whom becomes a matter of semantics "If the jury believed that plaintiff [had] cut into defendant's lane. * * *" 147 F.Supp. at page 317. On the issue of whether the plaintiff did cut into the defendant's lane we have Capriotti's clear statement of November 11, 1954 that he did, and Capriotti's rather ambiguous response when he testified on this point in open court. Capriotti's official report throws little light on how the accident occurred. We will not interpret ambiguity as contradiction where the issue is whether the trial court erred in refusing to grant a new trial. Under the circumstances presented by the case at bar, even assuming that some apparent inconsistency exists between Capriotti's written statements and his oral testimony, it is the law of Pennsylvania that it is the duty of the jury to resolve such inconsistency.*fn13 Sse Smith v. Flannery, 1956, 383 Pa. 526, 530-531, 119 A.2d 224, 226; Ingram v. City of Pittsburgh, 1944, 350 Pa. 344, 349, 39 A.2d 49, 50-51; Haverkamp v. Sussman, 1935, 317 Pa. 187, 189, 176 A. 206, 207; Danko v. Pittsburgh Railway Co., 1911, 230 Pa. 295, 298-299, 79 A. 511, 512.
We cannot conclude that the court below erred in denying the plaintiff's ...