Appeal from judgment of Court of Common Pleas of Lawrence County, June T., 1965, No. 310, and Sept. T., 1965, No. 96, in case of Theodore Cwiakala v. Hans Julius Paal.
Albert E. Acker, with him Cusick, Madden, Joyce, Acker and McKay, for appellant.
Robert E. Jamison, with him Jamison and Jones, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts concurs in the result. Mr. Justice Musmanno and Mr. Justice Cohen dissent.
In this trespass action, the jury found a verdict for defendant; the lower Court denied plaintiff's motion for a new trial; and from the Judgment entered on the verdict plaintiff took this appeal.
Plaintiff-appellant was a guest passenger in a car driven by Miss Trimble. The Trimble car collided with defendant's car, with resulting injuries to plaintiff. The Trimble car was going south over the knob of a hill while defendant's car was going north up the hill. The Trimble car was traveling 25 to 35 miles an hour. Defendant's car was traveling at the bottom of the grade 25 to 35 miles an hour. According to the testimony of the defendant, halfway up the hill the rear of defendant's car began to slide or skid to the left; he immediately released the accelerator, tried to straighten the car and succeeded in straightening it so that the rear of his car was across the center of the road (which had no center line painted thereon), and was stopped a foot or a foot and a half over the center of the road when the Trimble car came over the knoll. The Trimble car was there a car length or one and a half car lengths away from him. It had been raining that day and the road was damp.
On the other hand, Miss Trimble testified that when she came over the top of the hill she saw defendant's car, which was entirely on her side of the road and was still moving, that she swerved to her right in order to avoid defendant's car, but that in spite of her efforts
defendant's car struck her car and pushed her car back on the road.
Plaintiff contends that the jury's verdict (1) was against the weight of the evidence and (2) was a capricious disregard of the credible evidence, each of which would be sufficient to require a trial Court to grant a new trial. Clewell v. Pummer, 388 Pa. 592, 598, 131 A.2d 375; Ferruzza v. Pittsburgh, 394 Pa. 70, 83, 145 A.2d 706; Sarachman v. Avery, 419 Pa. 330, 333, 214 A.2d 247; Anderson v. Pittsburgh Railways Co., 423 Pa. 550, 554, 225 A.2d 548. In Anderson v. Pittsburgh Railways Co., supra, the Court said (page 554): "The appellate courts have held, however, that where a trial court sees and hears the witnesses, it has not only an inherent fundamental and salutary power, but it is its duty, to grant a new trial when it believes the verdict was capricious or against the weight of the evidence and resulted in a miscarriage of justice. Clewell v. Pummer, 388 Pa. 592 (1957), at p. 598, and the cases were [sic] cited."
Plaintiff also contends that a new trial should be granted because the lower Court permitted, over plaintiff's objection (see infra), testimony that defendant was the sole support of his widowed mother.
The test before this Court is well settled: where a new trial is refused or granted, an Appellate Court will reverse only when there has been a clear abuse of discretion or an error of law which controlled the outcome of the case. Zeman v. Canonsburg Boro., 423 Pa. 450, 223 A.2d 728; Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238; Trimble v. Merloe, 413 Pa. 408, 197 A.2d 457; DeMichiei v. Holfelder, 410 Pa. 483, 189 A.2d 882; Sternberg v. Dixon, 411 ...