Appeal from order of Court of Common Pleas of Allegheny County, July T., 1959, No. 2070, in case of Joseph Sarachman v. Harvey Charles Avery.
William C. Walker, with him Theodore O. Struk, and Dickie, McCamey, Chilcote & Robinson, for appellant.
John J. Hickton, with him McArdle, Harrington, Feeney & McLaughlin, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones and Mr. Justice Roberts concur in the result.
The trial judge in this case, after a long period of deliberation and much soul-searching, ordered a new trial because he believed that the verdict was against the weight of the evidence and that justice required, aye demanded, a new trial.
The plaintiff, Joseph Sarachman, an Allegheny County motorcycle policeman was patrolling the Liberty Tubes in Pittsburgh, traveling in the left lane of a tunnel which runs north and south. The defendant, Harvey Charles Avery, was driving an automobile in the same direction, but in the right lane. Large signs in the tunnel warned motorists not to cross from one lane to the other. The defendant admitted that he crossed from the right to the left but argued that this crossing had nothing to do with the accident which happened about three-fourths of the way through the tunnel.
The plaintiff testified that the defendant's car was about one and one-half car lengths in front of him in the right lane and that, without any preliminary notice of his intention, he suddenly crossed over to the left lane in front of the plaintiff and that he, the plaintiff, made every effort to avoid colliding with the car but was unable to do so and a collision followed, resulting in his being seriously injured.
The defendant testified that the plaintiff was pursuing him with siren blaring, that when he heard the siren he started to "slow up," then, when the policeman got close to him, he speeded up, the policeman did the same, caught up with him and struck his car in the rear.
If the defendant saw the motorcycle policeman pursuing him, heard the warning siren, and slowed down to find out what the policeman wanted, why, then, did he accelerate just as the policeman was about to overtake him? The defendant explained that he feared the policeman would run him down with his motorcycle? In the first place, in a duel between a motorcycle and a full-sized automobile, the automobile has the decided superiority of power, formidableness and defensive armor over the fragile two-wheeler. In the second place, what sort of a game of "tag" did the defendant think he was playing with the policeman, by slowing up to communicate with the policeman and then dashing away as the policeman approached? The trial court, in ordering the new trial, said: "The defendant's story of events immediately prior to the accident is confused and literally impossible. We cannot comprehend how a rational mind could base a judgment upon such testimony, and we must assume that the jury either misunderstood the evidence or completely disregarded it."
Even in cold print the defendant's story seems to lack verisimilitude. There was no suggestion that the policeman was intoxicated, berserk or inexperienced. He had been a member of the excellent Allegheny County Police for thirteen years, he was married and had two children. Everything in the case would argue against the bizarre explanation spoken by the defendant. The trial judge had the advantage of ...