decided: December 16, 1965.
Appeal from order of Court of Common Pleas of Greene County, June T., 1960, No. 161, in case of Albert Rye Micozzi v. Joseph Klysh.
R. Wallace Maxwell, for appellant.
Paul J. Votilla, with him James Hook, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J.
[ 207 Pa. Super. Page 78]
This is an appeal by the defendant from an order of the Court of Common Pleas of Greene County granting the plaintiff's motion for a new trial in a trespass action arising out of a motor vehicle collision. The grant of a new trial is an inherent power and immemorial right of the trial court, and the appellate court will not disturb the exercise of that authority in the absence of a clear abuse of discretion: Gallihue v. Penn Fruit Co., 196 Pa. Superior Ct. 325, 175 A.2d 96.
On April 24, 1958, about ten o'clock p.m., Albert R. Micozzi was the owner of a 1956 Oldsmobile which he was operating south on Route 88 near the Borough of
[ 207 Pa. Super. Page 79]
Carmichael. At the same time Robert J. Klysh, aged 21 years, was proceeding north as the operator of a 1953 Chevrolet owned by his parents, Joseph and Mary Klysh. The collision occurred when Klysh made a left turn across Micozzi's traffic lane. The complaint originally named the son and his parents as defendants, but it was ultimately amended to name the son as sole defendant. At the first trial the jury found in favor of Micozzi in the sum of $327. The court below thereafter granted Micozzi's motion for a new trial on the ground of inadequacy. The second trial resulted in a verdict for Klysh. As previously indicated, Micozzi's motion for a new trial was granted and this appeal by Klysh followed.
The weather was clear. The road was dry. It was "a nice evening". Klysh and two youthful companions were "just driving around". They eventually decided to patronize a dairy bar on the west side of the highway. The place at which the left turn was attempted was not an intersection. Klysh testified that his turn signal was operating, and that he came to a full stop before making the turn. Micozzi testified that Klysh was "coming pretty fast", and that he did not stop. Charles Chepes, a passenger in the Micozzi car, testified that "instead of him stopping, he cut right in front of us there, and there was no way of avoiding it". Micozzi was traveling at a legal rate of speed, he was in his own lane of traffic, and the collision resulted from the failure of Klysh to make the left turn in safety. On this record there can be little doubt that Klysh was negligent, and the trial judge so indicated in his charge. In granting the new trial the court below was "of opinion that it was error to submit the question of contributory negligence to the jury", citing Thomas v. Tomay, 413 Pa. 270, 196 A.2d 740.
Although we are not persuaded that the cited case controls the instant factual situation, it is clear that
[ 207 Pa. Super. Page 80]
the verdict in favor of Klysh was contrary to the overwhelming weight of the evidence. This was one of the reasons advanced by Micozzi in his new trial motion, and it fully justifies the action of the court below. Cf. Denman v. Rhodes, 206 Pa. Superior Ct. 457, 214 A.2d 274. It is therefore unnecessary to pass upon Micozzi's contention that the trial judge failed to charge on the burden of proving contributory negligence. See Commonwealth of Pennsylvania Department of Highways v. Eldridge, 408 Pa. 391, 184 A.2d 488. Similarly, it is unnecessary to pass upon Micozzi's contention, also advanced in his new trial motion, that the trial judge failed to charge on the doctrine of sudden emergency. See Weinberg v. Pavitt, 304 Pa. 312, 155 A. 867.
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