APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Biggs, Van Dusen and Gibbons, Circuit Judges. Biggs, Circuit Judge, dissenting.
VAN DUSEN, Circuit Judge.
Plaintiff*fn1 appeals from a district court judgment for defendant Ryan entered on the jury's verdict finding the plaintiff was contributorily negligent in a diversity,*fn2 survival and wrongful death action. Plaintiff contends that the jury's verdict was against the weight of the evidence, that the district court erred when it excluded evidence of drinking on the part of one of the defendants*fn3 prior to the accident, and because the district court committed numerous errors in its charge.*fn4
The accident causing the decedent's death occurred on December 17, 1965, on the Pennsylvania Turnpike, west of the Valley Forge service area. Decedent and two passengers were returning home to South Bend, Indiana, at the end of a vacation (N.T. 40). Just prior to the accident, decedent had had difficulty with his vehicle and had pulled into a service area for repairs. In the service area decedent was warned by a State Trooper, Officer Bigus, that the left rear light on the vehicle was not functioning and that he should have the light repaired before continuing on the Turnpike (N.T. 44, 216-18). After fixing the faulty light, the decedent drove a short distance on the highway when the car started to malfunction. The decedent and the occupants decided to attempt to back the car back to the service area (N.T. 46). Shortly thereafter the decedent's car was struck in the rear by the car driven by defendant Ryan.
Both parties agree that if decedent's vehicle was on the travelled portion of the Turnpike at the time of the accident, such evidence would sustain a finding of contributory negligence. However, there was sharp disagreement as to the position of the vehicle at the time of the impact. One of decedent's passengers claimed that the decedent's car was off the travelled portion of the highway (N.T. 51), but admitted that this was in contradiction to a statement he made to Officer Bigus immediately after the accident (N.T. 59-60, 64). Another witness for the plaintiff, who came to the scene after the accident, also testified that the car was off the highway (N.T. 79, 80). Defendants Wells and Ryan both stated the vehicle was partially on the highway (N.T. 159, 184-85). The defendants' testimony was corroborated by Officer Bigus, who gave his expert opinion that the point of impact was on the travelled portion of the highway (N.T. 227, 228).
It is not for this court to resolve the seeming inconsistencies in the testimony, but rather for the jury, since it is their function to weigh the testimony and the inferences to be drawn from the evidence. See, e.g., Continental Air Lines, Inc. v. Wagner-Morehouse, Inc., 401 F.2d 23 (7th Cir. 1968); Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129 (3d Cir. 1965). A motion for a new trial, based on the ground that the verdict was against the weight of the evidence, is "addressed to the sound discretion of the trial judge and its denial is not ordinarily reviewable on appeal." Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 482 (3d Cir. 1965); Sokol v. Gussack, 367 F.2d 576 (3d Cir. 1966) (per curiam). After a careful review of the record, we do not believe the district court abused its discretion when it stated:
"It is this court's view that there is ample testimony on the record, if believed, to support the jury's finding of contributory negligence."
The plaintiff next contends that the district court erred when it excluded evidence that Wells had been drinking at some undisclosed time prior to the accident. Plaintiff's counsel, in chambers, offered the following:
"Mr. Wells told Officer Bigus that he had five to seven 'V-O's' and water to drink within a two-hour period. . . when he asked if he had anything to drink.
"There will be testimony that he had five to seven shots of whiskey.
"I offer the testimony of Officer Bigus about the five to seven 'V-O's' and water within a two-hour period." (N.T. 140, 143, 146)
We note that this offer of proof was made with the intention to impeach the credibility of defendant Wells, whom plaintiff's counsel planned to call even before he had had a chance to see if he could prove his joint venture theory through the testimony of the next witness, ...