Appeal from judgment of Court of Common Pleas of Chester County, March T., 1961, No. 60, in case of Gary Anderson v. James Hughes, Jr., Anna Hughes, administratrix of estate of James Hughes, Sr., deceased, Donald Hughes, individually and as co-partners trading as Hughes and Sons, et al.
Michael C. Rainone, for appellant.
James E. O'Neill, Jr., with him W. Richard Gentry, and Rogers & O'Neill, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno and Mr. Justice Cohen dissent. Mr. Justice Roberts dissents on the ground that the trial charge was incomplete and inadequate, and may therefore have confused the jury by failing to present to it the total factual and legal situation.
On March 29, 1959, at approximately 11:30 a.m., Gary Anderson (Anderson), owned and was then operating a motor vehicle which was the last vehicle in a funeral procession, consisting of 12 or 13 other vehicles, which was proceeding along West Chester Pike, Chester County, en route to Rolling Green Cemetery. At the cemetery entrance, the lead vehicle in the procession stopped to effect an entry into the cemetery and Anderson's vehicle stopped. As Anderson's vehicle stopped it was struck in the rear by a truck. This
truck was operated by one Gene Ford (Ford), an employee of and engaged at the time upon the business of James Hughes, Jr., James Hughes, Sr. and Donald Hughes, individuals and trading as Hughes & Sons (Hughes), the owners of the truck.
Anderson instituted a trespass action in the Court of Common Pleas of Chester County against Ford and Hughes. After a trial before a court and jury, the jury returned a verdict in favor of Ford and Hughes and against Anderson. Anderson filed motions both for a new trial and judgment n.o.v.; the latter was withdrawn and the former was dismissed by the court below. From judgment entered upon the verdict this appeal was taken.
Anderson contends: (1) the evidence so clearly reveals negligence on the part of Ford and Hughes and the lack of negligence on the part of Anderson that Anderson is entitled to a new trial limited to the question of damages; (2) in view of the weight of the evidence, a new trial generally must be granted; (3) the trial court erroneously applied the so-called "Dead Man's" rule*fn1 and excluded the testimony of Anderson as against Hughes and such error requires a new trial be granted; (4) the instructions of the trial court were confusing, contradictory and incorrect and, therefore, a new trial must be granted.
First, Anderson takes the position that, in view of the evidence, the trial court should have directed a verdict at trial against Hughes and Ford on the ground of liability and, not having done so, a new trial limited to damages must now be granted. In support of his contention, Anderson relies in large part upon the so-called "incontrovertible physical facts" rule.*fn2
This rule has no application under the factual situation presented in the case at bar: MacDonald v. Pennsylvania R. R. Co., 348 Pa. 558, 561, 562, 36 A.2d 492. See also: Giragosian v. Philadelphia, 394 Pa. 476, 147 A.2d 309; Chapple v. Sellers, 373 Pa. 544, 96 A.2d 868. The testimony in the case at bar is oral testimony and our review of the record indicates that the jury could well have found, from this oral evidence, that Ford's operation of the truck was negligent and Anderson's operation of his vehicle non-negligent or that Ford's operation of the truck was not negligent or that Anderson's operation of his vehicle was negligent or that both parties in the operation of their respective vehicles were negligent. However, the resolution of these issues of ...