Appeal from judgment of Court of Common Pleas of Lebanon County, Dec. T., 1965, No. 365, in case of Oscar A. Brown v. McLean Trucking Company.
James R. Koller, with him Siegrist, Koller and Siegrist, for appellant.
Allen H. Krause, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy.
At around 8:00 P.M. on the evening of December 25, 1964, plaintiff was driving his automobile in a westerly direction on Route 22 in Lebanon County. The highway at this point is a 4-lane highway, 2 lanes for westbound and 2 for eastbound traffic. Intending to
make a left turn at an opening in the medial divider guardrail so as to reverse his direction, Brown moved from the right lane to the left, or passing lane and brought his car to a stop in order to await the passage of oncoming traffic in the eastbound lanes.
While plaintiff was so stopped to await an opportunity to complete the left-hand turn, the rear of his vehicle was struck by a tractor-trailer traveling west. At the time of impact, the tractor-trailer owned by McLean Trucking Company, the defendant, was in the process of passing a passenger car, with trailer attached, likewise traveling west, but in the right-hand lane. The road was wet from an earlier rain. Witnesses gave conflicting testimony as to visibility on the highway.
Plaintiff sued for personal injuries and damage to his automobile, and defendant counterclaimed for damage to its rig. The jury found a verdict for plaintiff, both in plaintiff's suit and in defendant's counterclaim. The court below denied defendant's motion for a new trial. From a judgment entered on the verdict, this appeal was taken.
The appellant argues that the verdict was against the clear weight of the evidence, and that the trial court abused its discretion in denying the motion for a new trial on this ground. The testimony was seriously in conflict. The jury could have found for the defendant either on the ground of no negligence on the part of the defendant or the existence of contributory negligence on the part of the plaintiff. This Court, however, will not reverse unless there has been a palpable abuse of discretion by the trial judge. See Hummel v. Womeldorf, 426 Pa. 460, 464, 233 A.2d 215 (1967), Kiser v. Schlosser, 389 Pa. 131, 132, 132 A.2d 344 (1957). Palpable abuse occurs, inter alia, when the trial judge permits a verdict to stand although it is
"so contrary to the evidence as to shock one's sense of justice and to make the award of a new trial imperative so that right may be given another opportunity to prevail". Jones v. Williams, 358 Pa. 559, 564, 58 A.2d 57 (1948), Londrino v. Equitable Life Assurance Society of the United States, 377 Pa. 543, 545, 105 A.2d 333 (1954), Bohner v. Eastern Express, Inc., 405 Pa. 463, 471, 175 A.2d 864 (1961), and Clewell v. Pummer, 388 Pa. 592, 598, ...