Appeal from order of Court of Common Pleas of Delaware County, No. 2149 of 1967, in case of Margaret E. Gilligan et vir v. John A. Shaw and Frank R. King.
John W. Wellman, with him J. Joseph Herring, Jr., and Fronefield, deFuria and Petrikin, for appellants.
John R. Graham, with him Crawford, Graham and Higgins, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen took no part in the decision of this case.
This is an appeal from an order of the lower court granting a new trial following a jury verdict in favor of defendants. The action was brought to recover damages for personal injuries and property damages resulting from a collision between a truck owned by defendant Shaw and operated by defendant King, appellants, and an automobile operated by the wife-plaintiff who, together with her husband, are appellees.
Appellee Margaret Gilligan, driving east on Springfield Road in Delaware County, was stopped at a red light at a point where the road crossed the trolley tracks of Philadelphia Suburban Transportation Company. Appellant King, driving a truck owned by Shaw, collided with the Gilligan car from the rear, causing the personal injuries to Mrs. Gilligan and the damages to her husband's car for which suit was brought. The accident occurred during the daylight, and the highway was clear and dry.
The defense, supplied largely by appellant King and uncontradicted, was that he was familiar with the locale, but because of a curve in the road, he could not see the Gilligan car until he was approximately fifty-five feet away from it; that the road at that point commenced a descending grade toward the intersection; that he, King, was then proceeding at about 20-25 miles per hour; that upon seeing the Gilligan car he applied his foot brake, which, although it had been working
properly beforehand, then failed to respond; that he then shifted from high gear to second gear, which reduced his speed to about 5 to 10 miles per hour, and groped for his emergency brake handle beneath the dashboard, but failed to find it in time; that he considered pulling off to a parking lot on the right, but pedestrians were in the way; that he did not look to his left, which might have provided an avenue for avoiding collision, but also might have brought him into collision with oncoming traffic had the traffic light then turned to green. The fact that the brake had failed was corroborated by appellant Shaw, who drove the truck from the scene of the accident to a garage. There was evidence by the garageman that brake repairs were made to the truck the day following the accident.
Plaintiffs moved for a new trial for the customary reasons, and for alleged error in the charge as to the law pertaining to sudden emergency; they also moved for judgment n.o.v. on the ground that the trial judge erred in refusing their point for binding instructions. The court denied the latter motion but granted the former for the reason that "this court is of the opinion that substantial justice warrants the granting of a new trial." Although the facts of the case were reviewed in the court's opinion, no reasons were given for its conclusion that justice required a new trial.
We again find ourselves in the position of reviewing the exercise by a lower court of its discretion in granting or declining to grant a new trial. There are no yardsticks which can be applied with mathematical certainty but, in a word, the general rule is that we will not interfere with the exercise of discretion by the lower court "unless there has been a clear abuse of discretion or an error ...