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WENHAM TRANSPORTATION v. RADIO CONSTRUCTION CO. (09/16/59)

September 16, 1959

WENHAM TRANSPORTATION, INC., APPELLANT,
v.
RADIO CONSTRUCTION CO., INC.



Appeal, No. 42, April T., 1959, from order of County Court of Allegheny County, No. 818 of 1954, in case of Wenham Transportation, Inc. v. Radio Construction Co., Inc. Order reversed.

COUNSEL

Thomas F. Weis, with him Weis & Weis, for appellant.

Robert S. Grigsby, with him Pringle, Bredin & Martin, for appellee.

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

Author: Hirt

[ 190 Pa. Super. Page 505]

OPINION BY HIRT, J.

About 4:30 in the morning of May 27, 1952 plaintiff's driver was proceeding eastwardly on alternate Route 5 known locally as The West Lake Road in Erie County. The spacious covered trailer drawn by plaintiff's tractor contained a cargo of freight weighing over 12 tons, for delivery to a consignee in New York State. The defendant's truck was being driven westwardly on Route 5 when, at a point about 5 miles west of the City of Erie, the two vehicles came into collision to the admitted damage of plaintiff in the sum of $1,500. In this action the jury found for the plaintiff in that amount. The lower court however, on defendant's motion,

[ 190 Pa. Super. Page 506]

    granted a new trial and this, the plaintiff's appeal, is from that order.

In Jones et vir v. Williams, 358 Pa. 559, 564, 58 A.2d 57, Mr. Chief Justice MAXEY said: "While this Court usually supports the action of the trial court in granting or refusing a new trial we do not entirely abdicate our reviewing functions in such cases.This Court, too, has the duty to determine from the record whether or not the jury's verdict was so contrary to the evidence as to shock one's sense of justice and to make the award of a new trial imperative so that right may be given another opportunity to prevail." And in Decker v. Kulesza, 369 Pa. 259, 263, 85 A.2d 413, it is said; "While an award of a new trial is an inherent power of the court and its exercise is a matter of discretion, the discretion is not an absolute one and it is the duty of this Court to review and determine whether there has been an abuse of discretion." Our Court has recognized the principle and has given it effect, e.g., in Ropele v. Stewart, 185 Pa. Superior Ct. 522, 531, 137 A.2d 895. That case as well as Decker v. Kulesza, supra, on the facts, have much in common with the instant case, and in all three of the above cited appeals the awards of new trials were reversed and judgments were directed to be entered on the verdicts. The instant appeal clearly is in the same class.

There are some inaccurate statements, in the opinion of the lower court, upon which a new trial was granted. Alternate Route 5, as the photographs in evidence show is more than "ten to twelve feet wide", as accepted by the lower court from an inadvertent statement of one of the witnesses. In fact this highway, the original Route 5, is one of two busy arteries of east and west travel between Cleveland and Buffalo. Including gravel berms it is 42 feet in width with a concrete pavement 22 feet wide. In normal driving the paved portion is

[ 190 Pa. Super. Page 507]

    entirely adequate for two vehicles of the maximum width allowed by law to ...


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