Appeals, Nos. 132 and 133, Oct. T., 1961, from order of Municipal Court of Philadelphia County, Sept. T., 1959, No. 129, and June T., 1960, No. 9178-C, in cases of James Crosson v. Charles Johnson, and Robert A. DeGeorge v. Same. Order affirmed.
Sheldon Tabb, for appellant.
Albert L. Bricklin, with him Bennett and Bricklin, for Crosson, appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 196 Pa. Super. Page 29]
In these two trespass cases the court below granted new trials and the defendant, in whose favor the jury found, appealed. The new trials were granted because the verdicts were capricious and against the weight of the evidence.
The determination of whether a verdict is against the weight of the evidence, so that a new trial should be granted, rests primarily within the discretion of the trial court and its action will not be disturbed unless there is a palpable abuse of that discretion as determined
[ 196 Pa. Super. Page 30]
from a careful review of the entire record: Ason v. Leonhart, 402 Pa. 312, 165 A.2d 625.
We have examined the entire record in this case and cannot find any palpable abuse of discretion by the court below. It was clear to the court below that the jury "brushed aside" the testimony of a disinterested eyewitness and then found its verdict "upon the defendant's unreliable and contradictory testimony."
Inasmuch as these cases must be retried we will refrain from relating in detail and thus appraising, by implication, the facts, testimony and inferences involved: McArthur v. Balas, 402 Pa. 116, 123, 166 A.2d 640.
On August 9, 1958 the plaintiff, Jemes Crosson, was the owner of a half ton panel truck which was being operated by his agent, the second plaintiff, Robert DeGeorge, in a southerly direction on Fifteenth Street at or about its intersection with Pine Street in the City of Philadelphia. The intersection was controlled by traffic lights. The defendant was operating his vehicle in an easterly direction on Pine Street. A collision occurred in the intersection. Fifteenth Street is one-way south and Pine is one-way east. Both streets are about three lanes wide. One of the most important questions, of course, was the color of the traffic light. Both drivers claimed a green light. However, there was one disinterested witness. That witness was a passenger in a car going east on Pine but which was stopped at the intersection in question for a red light against Pine Street traffic. He testified as follows on cross-examination: "A. The light was still green after the impact. ... Q. Green for whom? A. Green for moving south on ...