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ISCHO v. BAILEY (03/28/61)

March 28, 1961

ISCHO, APPELLANT,
v.
BAILEY, APPELLANT.



Appeals, No. 272, March T., 1960, Nos. 4, 5 and 6, March T., 1961, from order and judgment of Court of Common Pleas of Crawford County, Feb. T., 1957, Nos. 176 and 177, in cases of Daniel J. Ischo v. Robert M. Bailey and Frank D. Gotto, Same v. Robert M. Bailey, and Frank B. Gotto v. Robert M. Bailey. Order granting Gotto a new trial reversed; judgment n.o.v. for Gotto reversed; judgment for Ischo affirmed.

COUNSEL

Yolanda G. Barco, with her George J. Barco, and Barco and Barco, for appellant.

Stuart A. Culbertson, and Paul E. Allen, for defendant, Bailey, appellee.

George J. Barco, with him Yolanda G. Barco, and Barco and Barco, for plaintiff, Ischo, and additional defendant, Gotto.

Fred C. Kiebort, with him E. Lowry Humes, and Humes and Kiebort, for additional defendant, Gotto.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bell

[ 403 Pa. Page 283]

OPINION BY MR. JUSTICE BELL.

An accident occurred on December 19, 1956, about 11:30 p.m. at the intersection of Pine and Market Streets in Meadville, Pennsylvania. Gotto was the driver of one car, Bailey was the driver of another car, and Ischo was a passenger in Gotto's car. They all were badly hurt and everybody brought suit. Three cases were consolidated in the Court below for trial and were argued in this Court together. We believe it will clarify complicated questions if we discuss the cases in the manner hereinafter set forth.

Ischo was a passenger in the Gotto automobile. Gotto was driving his car in a westerly direction on Pine Street, which was a one-way through street. Bailey was driving his station wagon in a southerly direction on Market Street. There was a STOP sign on Market Street. As Gotto approached the intersection, Bailey was approaching it from Gotto's right. The Gotto car struck the Bailey car broadside on its left side almost in the middle of the intersection. Neither Gotto nor Bailey saw the other's car until at or after the collision. Gotto sued Bailey and Bailey sued Gotto, and Ischo sued Bailey, and Bailey brought in Gotto as an additional defendant. The jury returned a verdict in which they found that both Gotto and Bailey were negligent.

In the case in which Ischo was plaintiff the jury returned a verdict in favor of the plaintiff and against both defendants in the amount of $6802.49. The lower Court granted Gotto a new trial in his case against Bailey; refused Bailey's motion for judgment n.o.v. in the case in which Ischo sued him; granted Gotto's motion for judgment n.o.v. in the case in which Ischo sued him; and refused Ischo's motion for a new trial,

[ 403 Pa. Page 284]

    which was based on the inadequacy of the verdict. Ischo and Bailey appealed.

Sur Gotto's motion for a new trial against Bailey, the trial Court erroneously considered the test for a new trial to be the same test as is applicable in a motion for a judgment n.o.v.. We cannot understand how such a mistake could be made in the light of the authorities. See: Muroski v. Hnath, 392 Pa. 233, 139 A.2d 902; Sherman v. Manufacturers Light & Heat Co., 389 Pa. 61, 68, 132 A.2d 255 (and 23 cases cited therein). However, as we shall see, the error is immaterial.

The lower Court granted Gotto a new trial in his suit against Bailey because it said there was no evidence to show that Gotto was negligent or was guilty of contributory negligence, and consequently the verdict was against the weight of the evidence. We note parenthetically that if Gotto was not negligent or contributorily negligent, his motion for judgment n.o.v. should have been sustained. The lower Court further said: "If there was any conflicting evidence from which the jury could properly infer... Gotto was negligent in the operation of his vehicle we wouldn't feel justified in interfering with this verdict...." We do not understand how that Court could possibly have overlooked either the conflicting evidence or Gotto's own evidence which clearly and unquestionably convicted him of negligence and of contributory negligence (in the respective cases). Gotto called Bailey as on cross-examination in the suit in which Gotto was plaintiff. Bailey testified that he brought his car to a full stop near the stop sign, which is 24 feet north ...


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