Appeal from judgment of Court of Common Pleas of Westmoreland County, Oct. T., 1960, No. 583, in case of Ronald W. Noel v. Kenneth E. Puckett, Kenneth Gnau and W. M. Tynan & Co., Inc.
Robert M. Carson, for appellants.
Myron W. Lamproplos, with him Cassidy & Lamproplos, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen concurs in the result. Concurring and Dissenting Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this dissenting opinion.
This appeal lies from a judgment entered, after a non-jury trial, upon a verdict in favor of Ronald W. Noel [Noel], and against Kenneth E. Puckett [Puckett], Kenneth Gnau [Gnau], and W. M. Tynan & Co., Inc. [Tynan], in a trespass action arising out of a motor vehicle accident.
Noel, a U. S. Marine, on December 20, 1958, was hitchhiking from Youngstown, Ohio, to his base at Quantico, Virginia. At the first exit on the Ohio Turnpike, he hitchhiked a ride on a tractor operated by Puckett, owned by Gnau and leased at the time to Tynan. At the time of the accident, Puckett was upon business of both Gnau and Tynan.*fn1
Noel, riding in the right front seat of the tractor, fell asleep at a point near the Irwin interchange on the Pennsylvania Turnpike while the tractor was proceeding in an easterly direction in the eastbound lanes of the Turnpike. The next thing which Noel remembered was that he was lying, partly on and partly off, the easterly edge of the concrete portion of the Turnpike. The accident occurred at approximately 10:30 p.m., at a point west of a service plaza located a "mile or two" west of the New Stanton interchange on the Turnpike. As a result of the accident, Noel sustained serious injuries.
Noel instituted a trespass action in the Court of Common Pleas of Westmoreland County against Puckett, Gnau and Tynan. After a non-jury trial before Judge Sculco, a verdict for $14,500 was rendered in favor of Noel and against all three defendants. At the conclusion of Noel's case, counsel for Gnau and Tynan*fn2 moved for a compulsory non-suit upon the ground that no actionable negligence had been shown. Upon refusal of a compulsory non-suit, no evidence was presented on behalf of Puckett, Gnau or Tynan. After rendition of the verdict, Gnau and Tynan moved for a new trial*fn3 and, upon refusal of a new trial, judgment was entered upon the verdict.
While the issues raised on this appeal are enumerated as five actually only two basic questions are presented: (1) was there sufficient evidence of negligence to sustain the verdict? (2) did the court below
err in refusing the motion of Gnau and Tynan for a continuance of the trial?
In passing upon the propriety of the refusal of a new trial, our inquiry is whether the court below abused its discretion or committed an error of law which controlled the outcome of the case: Zeman v. Canonsburg Borough, 423 Pa. 450, 454, 223 A.2d 728, 730 (1966); Gaita v. Pamula, 385 Pa. 171, 175, 122 A.2d 63 (1956); Londrino v. Equitable Life Assurance Society, 377 Pa. 543, 544, 545, 105 A.2d 333 (1954); Wargo v. Pittsburgh Railways Co., 376 Pa. 168, 175, 101 A.2d 638 (1954). Unlike the appellate review of a refusal to take off a compulsory non-suit where the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict-winner, ordinarily in reviewing the refusal to grant a new trial we view all the evidence: Sherman v. Manufacturers Light & Heat Co., 389 Pa. 61, 68 (footnote), 132 A.2d 255 (1957). In the case at bar, however, since the only evidence of record is that of the judgment-winner we necessarily view such evidence in its most favorable light.
In addition to his own testimony on the subject of liability, Noel produced one witness, W. K. Thompson. From the time Noel fell asleep some miles west of the situs of the accident until after the accident he had no recollection of what had happened. Thompson, an experienced Greyhound bus driver en route at the time in his own private motor vehicle from Cleveland, Ohio to Mount Pleasant, Pennsylvania, was proceeding in an easterly direction on the Turnpike. According to him, the highway was "clear and dry" and "visibility was very good."*fn4 He ...