Appeal from order of Court of Common Pleas of Westmoreland County, April T., 1963, No. 400, in case of Thomas C. Wylie and Lenora Wylie, his wife v. Stanley Powaski.
Paul M. Robinson, with him David L. Robinson, and Robinson, Fisher & Long, for appellant.
B. Patrick Costello, with him Smith, Best & Horn, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Chief Justice Bell.
This Court has declared repeatedly and without modification or reservation that "'. . . "the granting of a new trial is an inherent power and immemorial right of the trial court and an appellate court will not find fault with the exercise of such authority in the absence of a clear abuse of discretion . . . One of the least assailable grounds for the exercise of such power is the trial court's conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; especially in such a case is an appellate court reluctant to interfere."'" (Clewell v. Pummer, 388 Pa. 592.)
The trial judge in this case, supported by two other judges, stated: "This Court realizes that it is not the province of the Court to resolve conflicts in testimony. This is the particular duty of the jury, but it is the
duty of this Court to weigh the evidence and the law and, if the jury disregards the credible evidence and does not apply the law properly, then this Court must grant a new trial. (Burd v. Pennsylvania Railroad Company, 401 Pa. 284, 292).
"It is the opinion of this Court that in this case the credible evidence including photographs of the automobiles, which were admitted into evidence in this trial, substantiated the position of the plaintiffs and that the jury by finding a verdict in favor of the defendant disregarded the credible evidence presented by the plaintiffs and that the jury's verdict was against the weight of the evidence and the law and, therefore, a new trial should be granted."
The litigation involved a conventional automobile accident, the plaintiff's car proceeding eastwardly on Route 30, the defendant's car advancing southwardly on Route 711, and both cars unceremoniously joining together in the middle of the intersection caused by those two highways intercrossing. The plaintiff's version of the collision was supported by two disinterested witnesses that the defendant failed to stop at a Stop sign and crashed into the plaintiff's car which had entered into the intersection in full accord with the rules governing safe travel on the highway. The defendant denied that the accident occurred as outlined in the plaintiff's case, and said that the plaintiff swerved to the left and struck the front end of his car when he was stopped.
The trial judge saw and heard the witnesses and was, therefore, in an excellent position to appraise and evaluate the credibility of the witnesses. A study of the record convinces us that there was no abuse of discretion in the awarding of a new trial. The order of the lower court is, therefore,