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January 6, 1958

Marian J. WILSON, Administratrix of the Estate of Robert E. Wilson,

The opinion of the court was delivered by: FOLLMER

This matter is presently before the Court on motions of the defendant for judgment in accordance with motion for directed verdict and for new trial following verdict of the jury in favor of plaintiff.

The case involved the death of Robert E. Wilson Following an automobile accident about 3:30 o'clock P.M. on September 30, 1954. The accident occurred in Oliver Township, Mifflin County, Pennsylvania, just east of McVeytown on United States Highway Route 22, leading in an easterly direction from McVeytown to Lewistown. Robert E. Wilson, the decedent, was driving a bread truck in an easterly direction. His vehicle was struck on the left rear by a tractor-trailer designed for transporting automobiles and operated by Walter Hess, driver-employee of defendant, Nu-Car Carriers, Inc., and also traveling in an easterly direction.

 As to the motion for directed verdict, the fact stated most favorably to plaintiff's case, drawing all reasonably possible inferences going to support the verdict, are as follows:

 Hess, the driver of the tractor-Trailer, from 7:00 o'clock A.M. September 29, 1954 to 3:30 o'clock P.M. September 30, 1954, a total of thirty-two and one-half hours, had been continuously driving or working at work incidental to his duties as a driver, with the exception of two rest periods aggregating eight hours. According to his own testimony, the weather was clear; he was traveling eastwardly on Route 22 and for a distance of five hundred feet leading up to the point of the accident he had observed no traffic at all although defendant's own witnesses, Robert B. Nichols and Agnes Runk, both testified that they were driving respectively a bus and an automobile in the opposite direction and both passed the defendant's tractor-trailer shortly before the accident; that there was clear visibility for a distance of five hundred feet to the point of the accident; that he was looking at the mountains and thinking about the days of the Indians, and enjoying the countryside; that when he looked back the bread truck was in front of him about thirty feet distant; that his only excuse for his failure to observe passing traffic was 'I didn't pay any attention'; that the bread truck was headed in the same direction as the tractor-trailer; that he could only see the rear wheels of the bread truck and that the right wheel *fn1" might have been a foot or two off the concrete highway on the macadam berm; that when less than thirty feet from the bread truck, Hess jammed on his brakes, swung to the left and his right front struck the left rear of the bread truck; that the tractor-trailer was traveling at a speed of thirty-five to forty miles per hour.

 There was conflicting testimony involving the course taken by the bread truck, i.e., whether as claimed by the plaintiff to have been proceeding eastwardly on Route 22 or to have entered Route 22 from Water Street, which entered Route 22 diagonally from the southwest, as contended by defendant. It was my feeling at the conclusion of the testimony that the plaintiff was entitled to have the issue of liability submitted to the jury. A careful reading of the testimony confirms my original conclusion.

 The function of the court in this matter is clearly stated in Vol. 6 Moore's Federal Practice 3814, § 59.08(5):

 '* * * In ruling on the motion for directed verdict, or for judgment n.o.v., it is the duty of the trial court to take that view of the evidence most favorable to the party against whom the motion is made, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for him. The trial court, then, in considering the motion for directed verdict, determines whether the evidence is legally sufficient to take the case to the jury; similarly, in considering the motion for judgment n.o.v. whether the evidence is legally sufficient to support the verdict that the jury has returned against the movant * * *.'

 Defendant's motion for directed verdict will accordingly be denied.

 In considering the motion for a new trial a different test must be applied. A motion for a new trial is addressed to the sound discretion of the court. De Pascale v. Pennsylvania R. Co., 3 Cir., 1950, 180 F.2d 825, 826; Nuttall v. Reading Company, 3 Cir., 1956, 235 F.2d 546. In the exercise of that discretion, the Court may consider the evidence as a whole and weigh it, and if he thinks the jury was mistaken or that the verdict is wrong, although supported by some evidence, he should grant a new trial. Grayson v. Deal, D.C.N.D.Ala., 85 F.Supp. 431.

 In 10 Cyclopedia of Federal Procedure, 3d Ed., § 34.04, at page 69, it is stated:

 'Courts are reluctant to grant new trials or rehearings and will not do so unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done.'

 Rule 61 of the Federal Rules of Civil Procedure, 28 U.S.C. provides:

 'No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.'

 The reasons assigned by defendant for a new trial, which will be considered in the light of the above quoted Rule, may be briefly stated as follows: Nos. 1 to 4 inc., verdict is contrary to the law and the evidence; No. 5 Court erred in permitting Walter Hess, driver of defendant's truck, to be called as a hostile witness; No. 6, Court erred in admitting testimony of Mrs. Wray; No. 7, Court erred in admitting testimony relative to Interstate Commerce regulations; No. 8, Court erred in permitting cross-examination of Robert B. Nichols by use of notes of testimony taken at coroner's inquest; No. 9, Court erred in relation to testimony of Sara A. Mort and Andrew J. Royko, and various rulings on points; No. 10, exceptions to charge, and No. 11, verdict excessive.

 Walter Hess was the driver of the truck owned by defendant and the sole ...

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