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MALONEY ET AL. v. RODGERS. (09/30/57)

September 30, 1957

MALONEY ET AL., APPELLANTS,
v.
RODGERS.



Appeals, Nos. 32, 33, April T., 1957, from judgment of Court of Common Pleas of Butler County, at C.P. 260, December T., 1956, and from order, Sept. T., 1951, A.D. 20, in cases of Mary Maloney v. Patrick E. Rodgers, and Clara H. Maloney v. Patrick E. Rodgers. Order vacated and judgment modified, to extent indicated.

COUNSEL

Lee C. McCandless, for appellants.

John L. Wilson, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Rhodes

[ 184 Pa. Super. Page 344]

OPINION BY RHODES, P.J.

This action in trespass to recover for personal injuries and property damage arises out of a collision between two automobiles. One of the cars was owned by plaintiffs, Mary Maloney and Clara H. Maloney. At the time of the accident it was being operated by Mary Maloney, apparently on her own business. The other car was owned and operated by defendant, Patrick E. Rodgers. Plaintiffs filed a complaint to recover damages

[ 184 Pa. Super. Page 345]

    to their car and for personal injuries sustained by Mary Maloney. The defendant did not file an answer, but filed a counterclaim against Mary Maloney for damages to his car and for personal injuries. The claims were consolidated for trial, and the jury found that both Mary Maloney and defendant were at fault; recovery was denied to all the parties. Plaintiffs filed a motion for a new trial asserting that the verdict was against the weight of the evidence, that it was contrary to law, and that the trial judge had erred in instructing the jury that the negligence of Mary Maloney would bar the claim of Clara H. Maloney. The court below recognized the latter as error and granted a new trial to Clara H. Maloney. A new trial was denied to Mary Maloney because the trial as to her was considered to have been without prejudicial error.*fn1 Both plaintiffs have appealed to this Court; the defendant has not appealed.

The first contention is that the verdict against Mary Maloney should not have been permitted to stand because it was "plainly and manifestly against the weight of the evidence." Whether the verdict is contrary to the weight of the evidence is a matter that rests largely within the sound discretion of the court below, and an appellate court will not interfere in the absence of an abuse of that discretion. Baugh v. McCallum, 140 Pa. Superior Ct. 276, 282, 14 A.2d 364; Kiser v. Schlosser, 389 Pa. 131, 132, 132 A.2d 344. The manner in which the accident happened in this case was described in the testimony of Mary Maloney and the defendant. Mary Maloney testified that at approximately 10 a.m. on December 24, 1950, she was driving the Maloney car south toward Fenelton on a Pinchot road that leads through

[ 184 Pa. Super. Page 346]

Fenelton to route 422 in Butler County; that although the weather was clear the road was covered with snow and ice and the berms were piled with snow; that there were three wheel tracks cleared in the snow and ice and were so spaced that the left wheels of cars approaching in opposite directions would each occupy the center track. Mary Maloney also testified that she was proceeding down a grade, "a pretty good size hill," at a speed of twenty to twenty-five miles per hour when she saw defendant's car approaching from the opposite direction up the grade; that she slowed down but continued to proceed and was still moving at a speed of five to ten miles per hour at the time of the collision. She testified that she pulled as far to her right as she could before the impact, and that she had cleared the center track prior thereto. She stated that just before the impact defendant turned his car to her side of the road.

Defendant testified that the Maloney car was visible four or five hundred feet away; that he attempted, unsuccessfully, to extricate his wheels from the tracks in the snow and ice in order to move to his right; that when he was unable to do so, he "swung it to the left" in a final effort to avoid the accident. He further testified that Mary Maloney did not stop, and that she did not pull the wheels of her car out of the ruts until just prior to the collision. He also said that there ...


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