Linsenmeyer v. Straits

166 A.2d 18, 402 Pa. 7, 1960 Pa. LEXIS 388
CourtSupreme Court of Pennsylvania
DecidedDecember 1, 1960
DocketAppeal, 154
StatusPublished
Cited by20 cases

This text of 166 A.2d 18 (Linsenmeyer v. Straits) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Linsenmeyer v. Straits, 166 A.2d 18, 402 Pa. 7, 1960 Pa. LEXIS 388 (Pa. 1960).

Opinions

Opinion by

Me. .Justice Benjamin R. Jones,

This litigation arises out of an accident, involving three motor vehicles, which took place in Washington County. Both Straits, the appellant, and the Linsenmeyers, appellees, instituted suits for damages for personal injuries sustained in this accident, each party alleging the collision was caused by the negligence of the other. Both actions were consolidated for trial and, after trial, the jury returned verdicts in both actions in favor of the Linsenmeyers and awarded them total verdicts of $11,500. Straits moved for judgment n.o.v. and a new trial; from the refusal of both motions and the subsequent entry of judgment on the verdicts this appeal was taken.

On appeal from the refusal to enter judgment n.o.v. the testimony must be considered in the light most favorable to the verdict winner and all reasonable inferences arising therefrom must be resolved in his favor: Muroski v. Hnath, 392 Pa. 233, 235, 139 A. 2d 902; Virden v. Hosler, 387 Pa. 1, 5, 127 A. 2d 110. Viewing the present record in this light, it appears that the accident occurred on November 25, 1956 on an ice covered bridge — connecting Washington and Monogahela — , the travelable portion of which was twenty-six feet in width and divided into two lanes. [10]*10At the time of the accident, the Linsenmeyer vehicle— operated by Bernard Linsenmeyer, Sr., who was accompanied by his wife, Rose Marie, and minor son, Bernard, — entered the bridge travelling in the eastbound lane thereof at a speed of approximately fifteen miles per hour and about thirty feet behind a motor vehicle driven in the same direction by one Wenzel. The Wenzel vehicle started to slide on the icy pavement and finally stopped in such a position that it blocked the eastbound lane. Observing this situation, the driver of the Linsenmeyer vehicle applied his brakes, began to slide and came in slight contact with the rear of the Wenzel vehicle. The Linsenmeyer vehicle then crossed the center lane and came to rest in such a position that its front end occupied approximately three and one-half feet of the thirteen foot westbound lane, leaving approximately nine feet of the lane unobstructed. Approximately eight to ten seconds elapsed from the time that the Linsenmeyer vehicle came to rest until Straits’ automobile — travelling in the westbound lane — crashed into the Linsenmeyer vehicle. During this interval of eight to ten seconds, Straits’ vehicle travelled at least four hundred fifty feet.

Straits contends that Bernard Linsenmeyer, under this factual situation, is barred from recovery by reason of-.contributory negligence. This argument for judgment n.o.v. is without merit and overlooks both the facts and the applicable law. A review of this record indicates clearly that the questions of Linsenmeyer’s negligence and contributory negligence were properly submitted to the jury. It was for the jury to reconcile the conflicting testimony and contentions of Linsenmeyer and Straits, and the jury resolved these questions with a verdict for Linsenmeyer in both actions, thus negating any negligence or contributory negligence on Linsenmeyer’s part.

[11]*11Kurtz v. Philadelphia, Transportation Co., 394 Pa. 324, 147 A. 2d 347, controls this situation. In Kurts, plaintiffs vehicle, travelling north, stalled on the southbound tracks of the defendant’s trolley line. Defendant’s trolley was at that time four hundred feet away and continued without a decrease in speed until it struck plaintiff. In Kurts, the defendant, as in the instant case, sought judgment n.o.v. upon the ground that the plaintiff was contributorily negligent as a matter of law and this Court held that the question of contributory negligence was properly submitted to the jury. Helt v. Berman, 155 Pa. Superior Ct. 294, 38 A. 2d 386, is also apposite. In Kelt, plaintiff testified that, as he was travelling south on a four-lane highway across a bridge at a speed of twenty to twenty-five miles per hour, he was about to negotiate a turn to his right and, as he did so, the rear of his vehicle skidded to the left, was then righted and after proceeding straightway about twenty-five feet the front of the vehicle again skidded and ended at right angles to the highway completely blocking the northbound lane in which defendant was travelling. At the time plaintiff had completed his skid and his vehicle had come to rest in defendant’s path, the defendant’s vehicle was then between one hundred and one hundred fifty feet away. The case was submitted to the jury upon the theory that “if, as plaintiff testified, he had come to rest in the path of defendant’s truck at a time when the latter was one hundred to one hundred fifty feet away, the jury might find defendant’s driver was negligent in failing to stop or turn to his left... or in some other way avoid the collision”. The Superior Court affirmed a verdict against the defendant on the theory that the issue was one of credibility to be determined by the jury. In the instant situation the court below very properly refused to enter judgment n.o.v.

[12]*12Straits advances six reasons in support of Ms motion for a new trial: (1) that the verdicts were against the weight of the evidence; (2) that, in considering (1), supra, the court applied an erroneous principle oí law; (B) that the verdicts were excessive; (4) that the court below erroneously refused to sustain challenges for causes; (5) that counsel in Ms closing address to the jury employed improper and prejudicial remarks; (6) that the conduct of the trial judge was improper and prejudicial.

In support of his first assignment of error, Straits contends that, since the only testimony as to his liability emanated from Linsenmeyer,- — interested parties,- — and, since their testimony was contradicted by ■Straits and five so-called “impartial and disinterested” witnesses, the verdicts were against the weight of the evidence and a new trial should be granted. With this position we are not in agreement. In support of his position, Straits cites cases1 in which this Court has awarded a new trial where the plaintiff’s version of the accident was contradicted by disinterested witnesses. An examination of these cases reveals that the witnesses therein were “eye witnesses” and that there was under the circumstances no reason to doubt their version. In the present situation, none of the “impartial and disinterested” witnesses saw the actual collision. One of the witnesses was Straits’ father-in-law and three of the witnesses — Mr. and Mrs. Wenzel and their daughter — had just experienced the frightful sensation of sliding and being involved in a collision. Not only did Mr. Wenzel give conflicting testimony on the important time interval involved but there was a grave [13]*13question as to Ms impartiality. Under these circumstances the credibility and weight of the testimony was clearly for the jury: O’Farrell v. Mawson, 320 Pa. 316, 320, 182 A. 538. There was sufficient evidence to sustain these verdicts and the court below did not abuse its discretion in refusing the motion for a new trial on this ground: Kiser v. Schlosser, 389 Pa. 131, 132, 132 A. 2d 344; Wilson v. Kallenbach, 332 Pa. 253, 256, 2 A. 2d 727.

Straits’ second assignment of error is that the court, in determining whether the verdicts were against the weight of the evidence, applied erroneously the principle of law applicable in the disposition of a motion for judgment n.o.v.

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Cite This Page — Counsel Stack

Bluebook (online)
166 A.2d 18, 402 Pa. 7, 1960 Pa. LEXIS 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linsenmeyer-v-straits-pa-1960.