Appeal, No. 197, April T., 1959, from order of Court of Common Pleas of Crawford County, May T., 1958, No. 36, in cases of Mary Alice Olynik v. Merle H. Luce et al., and Charles Olynik v. Merle H. Luce. Order affirmed.
Stuart A. Culbertson, with him Paul E. Allen, for appellant.
Peter E. Blystone, with him J. Perry Eckels, and Eckels, Stigner & Blystone, for appellees.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 192 Pa. Super. Page 313]
On November 30, 1957, in Cussewago Township, Crawford County, there was a collision between a Pontiac automobile owned and operated by Charles Olynik, in which his wife, Mary Alice Olynik, was riding as a passenger, and a Chevrolet automobile owned and operated by Merle H. Luce. Olynik and his wife instituted a trespass action against Luce, who obtained a severance. The husband was thereafter joined as additional defendant in the wife's action. At the commencement of the trial, Honorable LEO H. McKAY specially presiding, attention was called to the question
[ 192 Pa. Super. Page 314]
of conflict of interest. See Jedwabny v. Philadelphia Transportation Co., 390 Pa. 231, 135 A.2d 252; Allen v. Duigan, 191 Pa. Superior Ct. 608, 159 A.2d 21. It was thereupon noted for the record that the parties understood the situation and were satisfied. After a three-day trial, the jury found Luce and the husband equally guilty of negligence, and awarded damages against both in the wife's action in amount of $5,000.00. Consistently, in the husband's action against Luce, the jury found for the defendant. The husband filed a motion for new trial in both actions. Luce filed a motion for judgment n.o.v. in the wife's action, which motion was subsequently withdrawn. The court en banc thereafter ordered "that the rule to show cause why a new trial should not be granted in the above entitled cases on the ground that the verdicts of the jury are against the weight of the evidence, is made absolute and a new trial is ordered". Luce has appealed.*fn1
The record discloses that the collision occurred about 4:45 P.M. at a T intersection. The top of the T runs from north to south and actually consists of two roads. A paved highway, up to that point known as Route 20127, comes from the north and makes a right angle turn to the west. Route 618, an unimproved road, leads off to the south. The continuation of the paved highway, running from east to west, is known as Route 20056. On the afternoon in question it had been snowing for several hours and the road surface was wet and slippery. There is an uphill grade as one approaches the intersection from the north on Route 20127, which grade continues around the turn into
[ 192 Pa. Super. Page 315]
Route 20056. The views of drivers approaching from either north or west are obscured by an embankment at the northwest corner of the intersection. The Olynik automobile was moving east on Route 20056 about to turn north on Route 20127. The Luce automobile was proceeding south on Route 20127 and was negotiating, or had just negotiated, the turn west into Route 20056 when the left front fenders of the respective automobiles came into contact. The testimony was in conflict as to whether the collision took place in the intersection, or just west thereof. Similarly, the respective theories of the manner in which the collision occurred were conflicting. It was the theory of the husband-plaintiff that he was traveling on his own or south side of Route 20056 at 15 miles per hour and that the Luce automobile came around the turn on its wrong or south side. Luce's theory was that, while negotiating the turn, he was operating entirely on his own or north side of the road and that the Olynik automobile was in the middle of the highway. Following the collision, the Olynik automobile remained for some time in its position immediately after the impact, whereas the Luce automobile was backed a short distance down the grade to the north.
In addition to the husband-plaintiff,*fn2 there were four witnesses who supported the Olynik theory as to liability. Stephen Holowich testified that he arrived at the scene shortly after the collision, and that the Olynik car was then on the extreme south side of Route 20056 west of the curve. J. O. Boyer, who resided at the northwest corner of the intersection, testified to the same effect. He also stated that, several days ...