rather a recollection of information gleaned from other sources.
Neither Collison nor Wright testified to the circumstances of the collision, and casting aside, as we do, the testimony of Owens on this score, the remaining evidence utterly fails so to 'describe, picture or visualize what actually happened as to enable the fact-finding tribunal reasonably to conclude that' either Wright or Crowley was culpable. Ashby v. Philadelphia Transp. Co., 356 Pa. 610, 612, 52 A.2d 578.
In determining the facts the court first examined all of the evidence on the issue of liability in the action brought by the Wright estate against the Crowley estate (C.A. 21,236), since in that action no objection was made to the competency of any witness to testify to the circumstances immediately preceding and attending the collision. From its scrutiny of that evidence the court found that neither Wright nor Crowley was negligent. We need not rule, therefore, upon the sundry objections made by counsel for Crowley's estate to the competency of the witnesses, under the Act of 1887, supra, to testify descriptively of the circumstances of the collision in the three suits by Maryland Casualty Company in which, respectively, the witnesses were statutory subrogors. If those objections were now overruled, the evidence on the liability issues in the three suits of Maryland Casualty Company would be the same as the evidence in the action by the Wright estate; and, were any of those objections now sustained, the quantum of evidence on the liability issue in one or more of Maryland's three suits would be less than that in the action by the Wright estate.
Moreover, since the evidence failed to establish liability on the part of Wright or Crowley, we make no findings on the remaining issues of damages and no determination of whether the right of recovery by Maryland Casualty Company in each of its three suits is limited to the amount of compensation paid and payable by it to Collison, McDevitt and Owens, respectively.
In its consideration of the liability issues, the court was mindful of the principles set forth in Horsham Fire Co. No. 1 v. Fort Washington Fire Co. No. 1, 383 Pa. 404, 119 A.2d 71, and of the provisions of the Pennsylvania Motor Vehicle Code, 75 P.S. § 1 et seq.
Maryland Casualty Company has filed a post-trial motion in C.A. 23,141 to amend the caption to designate the plaintiff therein as 'Walter Collison to the use of Maryland Casualty Company, Plaintiff'. Similar post-trial motions, apropos of McDevitt and Owens, were filed respectively in C.A. 23,142 and 23,143. The purpose of these motions is to sidestep the contention of the Crowley estate that Maryland's recovery in each suit, as originally instituted, cannot in any event exceed the amount of compensation paid and payable by Maryland to its statutory subrogor.
However, we need not delay disposition of these cases for briefs and argument upon the merits of Maryland's post-trial motions to amend or upon the anticipated challenges thereto of untimeliness, the bar of the statute of limitations or possible divestiture of jurisdiction for want of diversity. Where no liability exists, the banner under which Maryland has lost the war is immaterial and we therefore do not pass upon its motions.
Conclusions of Law
1. The court, in each case, has jurisdiction of the present parties and of the subject matter.
2. Walter Collison was not negligent.
3. Paul McDevitt was not negligent.
4. John Owens was not negligent.
5. Joseph Wright was not negligent.
6. Joseph Wright did not recklessly disregard the safety of Crowley, Collison, McDevitt, Owens or others.
7. William Crowley was not negligent.
8. William Crowley did not recklessly disregard the safety of Wright, Collison, McDevitt, Owens or others.
9. The defendants, in each case, are entitled to judgment.
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