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WILLIAM LIND AND RICHARD LIND v. MATTHEW THOMAS. APPEAL WILLIAM LIND AND RICHARD LIND (04/12/79)

decided: April 12, 1979.

WILLIAM LIND AND RICHARD LIND, MINORS, BY THEIR PARENT AND NATURAL GUARDIAN MARY JO LIND, AND MARY JO LIND, IN HER OWN RIGHT
v.
MATTHEW THOMAS. APPEAL OF WILLIAM LIND AND RICHARD LIND, MINORS BY THEIR PARENT AND NATURAL GUARDIAN MARY JO LIND (GEARS)



No. 323 April Term 1978, Appeal from the Order of the Court of Common Pleas of Beaver County, Civil Action, Law entered on the 6th day of Oct. 1977 at No. 852 of 1974.

COUNSEL

Scott L. Melton and John Alan Conte, Conway, for appellants.

Samuel C. Holland, Panner, Holland & Autenreith, Beaver, for appellee.

Van der Voort, Spaeth and Montgomery, JJ.

Author: Spaeth

[ 265 Pa. Super. Page 123]

This appeal arises from a two car collision. It is filed by passengers who were riding in one of the cars.

The collision occurred at the intersection of Kennedy Boulevard and Grand Avenue in Aliquippa. Kennedy Boulevard is a four-lane highway that runs in a generally east-west direction. Grand Avenue is a two-lane highway that runs in a generally north-south direction. Appellee, Matthew Thomas, was struck as he was negotiating a left turn from Kennedy Boulevard onto Grand Avenue, by a car driven by Mary Jo Lind. Appellants are Mrs. Lind's children, and were passengers in her car. After the accident, Thomas sued Mrs. Lind, Mrs. Lind sued Thomas, and appellants (by their mother) also sued Thomas.*fn1 The actions were consolidated and were tried by a jury, which returned verdicts in favor of Thomas in both Mrs. Lind's suit against him, and appellant's suit against him, and in favor of Mrs. Lind in Thomas's suit against her, in other words, verdicts that denied any recovery for anyone involved in the accident. A post-verdict motion was filed in which appellant, and Mrs. Lind requested new trials. The lower court, sitting en banc, denied the motion. Mrs. Lind has not appealed from this denial, but her children have, claiming that the

[ 265 Pa. Super. Page 124]

    jury's verdict against them was against the weight of the evidence.*fn2

Our cases hold that "[w]here a verdict is so greatly against the weight of the evidence as to be a shock to the judicial conscience, a court has not only the right but the duty to disagree with the jury and to overturn its verdict no matter how many trials need be had in the interest of justice . . . ." Denman v. Rhodes, 206 Pa. Super. 457, 460, 214 A.2d 274, 275 (1965). See also Micozzi v. Klysh, 207 Pa. Super. 77, 215 A.2d 263 (1965). "[I]n passing upon the question whether a verdict is against the weight of the evidence, the court is not required to consider the evidence in the light most favorable to the verdict winner . . . . It is of course true "that the assaying of the credibility of witnesses and the resolving of conflicts in their testimony are for the jury. But it is equally true that the trial judge may not hide behind the jury's verdict; he has a duty to grant a new trial when he is convinced that the judicial process has resulted in the working of an injustice upon any of the parties . . . ." Denman v. Rhodes, supra, 206 Pa. Super. at 459, 214 A.2d at 275 (1965) (citations omitted). See also Pritts v. Wigle, 414 Pa. 309, 311, 200 A.2d 386, 387 (1964).

It is undisputed that appellants, as children riding in their mother's car, were free of contributory negligence. Thus, in order for the denial of any recovery for appellants to be lawful, the jury had to find that Thomas was not negligent.

The testimony established that the accident occurred at 3:44 p. m. on June 22, 1972. It had rained earlier in the day and was drizzling at the time of the accident. However, no one has asserted that the weather was a substantial factor in causing the accident. Thomas testified that he was driving in the eastbound passing lane on Kennedy Boulevard, and that when he reached its intersection with Grand Avenue, he stopped two car lengths before the traffic light ...


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