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STARNER v. WIRTH (10/09/70)

decided: October 9, 1970.

STARNER
v.
WIRTH, APPELLANT



Appeal from order of Court of Common Pleas of Adams County, Aug. T., 1966, No. 206, in case of Ross E. Starner v. Herbert F. Wirth, Jr.

COUNSEL

G. Thoms Miller, with him F. Murray Bryan, and McNees, Wallace & Nurick, for appellant.

David F. Binder, with him Richter, Syken, Ross, Binder & O'Neill, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 440 Pa. Page 179]

This is an appeal from an order of the Court of Common Pleas of Adams County granting a motion for new trial in a trespass action.

As a result of a one-car collision, plaintiff Starner [appellee] sustained personal injuries while a passenger in a vehicle owned and operated by defendant Wirth [appellant.] These injuries were allegedly due to the negligent operation of the automobile on an unpaved township road.

A pre-trial deposition of Wirth was taken subject to the express stipulation, ". . . all objections except as to the form of the question shall be reserved to the time of trial." During the taking of the deposition, opposing counsel asked, "Do you feel you were traveling at an excessive rate of speed in view of the nature of the road, now that you look back?" In reliance on the stipulation, no objection to the improper nature of the answer sought to be elicited by that question was made by counsel for Wirth. Wirth then answered, "I would say a little bit."

During cross-examination of Wirth at trial, he was asked, "Now, as you have reflected upon that kind of

[ 440 Pa. Page 180]

    road, and the speed to [ sic ] which you were going, Mr. Wirth, would you tell us whether or not the speed at which you were going just prior to the accident, was or was not excessive?" Objection to this question on the ground that it called for a conclusion which only the trier of fact could make was sustained. Counsel for Starner then requested a side-bar conference during which he stated that, in the event of a negative answer by Wirth, he proposed to read into evidence Wirth's admission in the pre-trial deposition that his speed was a little bit excessive. The objection by Wirth's counsel was again sustained and the evidence was excluded.

Following the jury's return of a verdict in favor of Wirth, Starner filed a motion for a new trial. While eleven reasons were assigned as reasons for a new trial and considered by the trial judge, the sole and exclusive reason assigned by the trial judge in his opinion ordering a new trial was his conclusion that it was error to exclude the question at trial and Wirth's admission in his pre-trial deposition. This appeal followed.

We recently stated, "The grant of a new trial lies within the inherent power of a trial court, and on appeal we will not interfere with the exercise thereof, unless there has been a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial." Kralik v. Cromwell, 435 Pa. 613, 615, 258 A.2d 654, 656 (1969). Cf. McConn v. Commonwealth, Dept. of Hwys., 431 Pa. 574, 584, 246 A.2d 677, 683 (1968) (concurring and dissenting); Cwiakala v. Paal, 427 Pa. 322, 324, 235 A.2d 145, 146 ...


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