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NERO v. DUFFY (ET AL. (12/14/60)

December 14, 1960

NERO
v.
DUFFY (ET AL., APPELLANT).



Appeal, No. 242, April T., 1960, from judgment of Court of Common Pleas of Beaver County, June T., 1959, No. 295, in case of Teresa Nero et al. v. Rayburn P. Duffy et al. Order reversed and new trial granted.

COUNSEL

R. Clifton Hood, with him Evans and Hood, for appellant.

Lee E. Whitmire, Jr., with him Whitmire and Mannix, for appellee.

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

Author: Watkins

[ 194 Pa. Super. Page 175]

OPINION BY WATKINS, J.

This is an appeal by the additional defendant, Frank J. Ross, from the judgment of the Court of Common Pleas of Beaver County and from the court's refusal to grant a motion for a new trial.

The matter before us is the result of an automobile accident which occurred on August 24, 1958, at the intersection of Route No. 481 and Route No. 51 in

[ 194 Pa. Super. Page 176]

Darlington Township, Beaver County, Pennsylvania. The plaintiffs, Teresa Nero and Cipriano Nero, were passengers riding in the back seat of the automobile of the appellant, Frank J. Ross, as it was proceeding westwardly on Route No. 51, a four-lane highway. As they approached the intersection of Route No. 481, Ross observed the automobile of defendant, Rayburn P. Duffy, slowly cross the eastbound lane of Route No. 51 and the medial strip between the westbound and eastbound lanes of Route No. 51 and instead of stopping as expected continued on into the westbound lane into the path of Ross who was travelling then in the far right lane, at the legal speed of 40 miles per hour. A collision resulted. The jury brought in a verdict against both the original defendant and the additional defendant.

The sole question raised on this appeal is whether a remark made by the trial judge, near the end of his charge, constituted a fundamental trial error, and the subsequent refusal of a new trial, an abuse of discretion. We think it was fundamental error and the court did abuse its discretion.

The rule has been stated many times that while an award of a new trial is an inherent power of the court and its exercise a matter of discretion, the discretion is not an absolute one and it is the duty of the court to review and determine whether there has been an abuse of discretion. Millenson v. City Stores Company, 382 Pa. 39, 114 A.2d 80 (1955); Decker v. Kulesza, 369 Pa. 259, 85 A.2d 413 (1952).

Whether there has been an abuse of discretion is, of course, a matter of degree and is dependent upon the facts and circumstances existent at the time of the exercise of discretion. In the present case, the trial judge, after a very fair trial and charge by the ...


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