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NEHREBECKI v. MULL (11/12/63)

November 12, 1963

NEHREBECKI
v.
MULL, APPELLANT.



Appeal, No. 123, March T., 1963, from order of Court of Common Pleas of Washington County, Nov. T., 1959, No. 368, in case of Kathryn Nehrebecki, Kamille Nehrebecki, a minor, by her guardian, Samuel Nehrebecki, and Samuel Nehrebecki v. Fred Harvey Mull. Order affirmed.

COUNSEL

Thomas L. Anderson, for appellant.

Paul N. Barna, with him Paul N. Barna, Jr., and Barna and Barna, for appellees.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Eagen

[ 412 Pa. Page 439]

OPINION BY MR. JUSTICE EAGEN

This is a personal injury and property damage action arising out of an automobile collision. The jury specifically found that the defendant was not guilty of negligence and returned a verdict in his favor. The court en banc below granted a new trial ruling that the verdict was "capricious and against the weight of the evidence and resulted in a miscarriage of justice." The defendant appeals.

We have repeatedly said that we will not reverse the grant of a new trial, unless there was a clear abuse of discretion, or an error of law which controlled the outcome of the case: Segriff v. Johnston, 402 Pa. 109, 166 A.2d 496 (1960); Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961); Feltovich v. Sharon, 409 Pa. 314, 186 A.2d 247 (1962).

As stated in Lenik Condemnation Case, 404 Pa. 257, 172 A.2d 316 (1961), at 259: "One of the least assailable reasons for granting a new trial is the lower court's conviction that the verdict was against the weight of the evidence and that new process was dictated by the interests of justice. With reasons for this action given or appearing in the record, only a palpable abuse of

[ 412 Pa. Page 440]

    discretion will cause us to overturn the court's action." In determining whether or not the grant of a new trial constituted an abuse of discretion, it is our duty to review the entire record: Jones v. Williams, 358 Pa. 559, 58 A.2d 57 (1948); Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961); Feltovich v. Sharon, supra.

The collision involved occurred at the right-angled intersection of Routes 88 and 837 in Carroll Township, Washington County. The wife-plaintiff, Kathryn Nehrebecki, was driving her husband's automobile in a westerly direction on Route 837. As the plaintiff's automobile approached the intersection, she slowed down and come to a complete stop at the eastern edge of the improved portion of Route 88. Her view to the right was partially obstructed and limited to approximately 100 feet because the rear-end of a gasoline truck, stopped at a gas filling station located on the northeasterly corner of the intersection, was protruding out onto the pavement of Route 88. After looking to her right and left, and being satisfied that no traffic was coming in either direction, she proceeded to cross the roadway. At that moment, the gasoline truck commenced to move backwards, further out onto Route 88, and proceeded to a point where it covered about one-third of the improved portion of that roadway. Before crossing the center line of Route 88, the wife-plaintiff again looked to her right and left and saw no cars within her view. When the front of the automobile she was operating had reached the edge of the westerly or opposite side of Route 88, she first saw the ...


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