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HERROLD v. WADDINGTON (03/16/59)

March 16, 1959

HERROLD
v.
WADDINGTON, APPELLANT.



Appeals, Nos. 40 and 41, Jan. T., 1959, from orders of Court of Common Pleas of Cameron County, May T., 1957, Nos. 50 and 81, in cases of George Herrold v. Cyril Waddington, Jr., and Janet Herrold v. Same et al. Orders affirmed.

COUNSEL

John D. Gresimer, for appellant.

Joseph J. Malizia, for appellees.

Before Jones, C.j., Musmanno, Jones, Cohen and McBRIDE, JJ.

[ 394 Pa. Page 636]

OPINION PER CURIAM.

George Herrold and his wife, Janet Herrold, brought an action in trespass against Cyril Waddington, Jr., as the result of an accident which occurred when the automobile in which the plaintiffs were riding collided with a car being driven by Waddington. Waddington obtained a severance of the issues so that in the suit of Janet Herrold against Waddington, he, Waddington, brought in George Herrold as an additional defendant. The cases were consolidated for trial.

In the suit of George Herrold against Waddington, the jury returned a verdict for the defendant. In the severed case of Janet Herrold against Waddington and George Herrold, the jury returned a verdict in favor of the plaintiff in the sum of $2500. George Herrold filed a motion for a new trial, averring various reasons, among them the one that the verdict was against the weight of the evidence. Janet Herrold asked for a new trial averring inadequacy of verdict.

The lower court ordered a new trial as to George Herrold versus Waddington, stating: "The next reason assigned for a new trial is that the verdict is against the weight of the evidence. With this we agree. Both the plaintiff and his wife testified that the car of the plaintiff, George Herrold, was in his own proper lane on the highway and defendant crossed into this lane and that the impact occurred there. There was some

[ 394 Pa. Page 637]

    corroboration of this testimony by a member of the Pennsylvania State Police who arrived within about fifteen minutes after the accident occurred. He saw a lump of dry dirt which had apparently fallen from one of the cars in the plaintiff's lane at the time of the impact and he also found glass scattered around this same area which to him indicated that the point of impact was in the lane of the plaintiff.

"The plaintiff and his wife both testified that the accident happened on a straight stretch about one hundred feet from a curve to their left. This is also corroborated by the member of the Pennsylvania State Police. They further testified that the left front part of the defendant's car struck the car of the plaintiff between the front wheel and the driver's seat and in this they are corroborated by the testimony of Irwin L. Murray, the mechanic who was called to the scene, and also by exhibits introduced into evidence by both the plaintiff and the defendant. No objection was made to the admission of these exhibits by any of the parties.

"Plaintiff and his wife also testified that on the day after the accident the defendant came to the plaintiff's wife, Janet Herrold, at the hospital in St. Mary's told her that he did not remember how the accident happened and requested her to assist him in making his police report of the accident. She did this and he accepted her version as correct. She testified at the trial of this case that her testimony then being given by her on the stand was in complete accord with the facts set forth on the accident report of the defendant which she assisted him in preparing. The plaintiff, George ...


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