Byers v. Vargo ( 1957 )

Opinion by

Mr. Justice Bell,

These appeals arose out of actions in trespass for death of plaintiff’s decedent resulting from a collision between a Chevrolet automobile driven by Vargo on the long Versailles-Boston Bridge in Allegheny County, and a motorcycle driven in the opposite direction by the additional defendant Moldovan. Plaintiff’s decedent was a passenger on the back seat of the motorcycle. The jury returned a verdict against Vargo and in favor of plaintiff in the Wrongful Death action in the amount of $2500, and in the Survival action in the amount of $7500. The jury also returned a verdict in favor of Moldovan, the additional defendant.

Vargo filed a motion for a new trial, contending that the verdicts were clearly against the weight of the credible evidence. The Court below refused the motion and entered a judgment on each verdict. From these judgments Vargo has taken these appeals.

The accident occurred on September 22, 1952, at about 4 o’clock p.m., near the middle of the Versailles-Boston Bridge. The day was clear and dry. The ramp on the upgrade to the bridge was 527 feet in length and the bridge itself was 780 feet in length.

There were three lanes of traffic, each lane marked by broken white lines. Yargo, accompanied by his wife, his stepdaughter and her infant child, was driving his Chevrolet car north on the bridge going from the Boston end to the Versailles end. A loaded tractor-trailer, about 40 feet in length, was proceeding at about 15 miles an hour in the right-hand (correct) lane close to its right curb, going from the Boston end toward Versailles. Vargo, traveling about 25 miles an hour and going in the same direction as the tractor-trailer, pulled into the center lane to pass. On the bridge at that time there was no traffic proceeding from the Boston end to the Versailles end except Vargo’s automobile and the tractor-trailer, and there was no traffic proceeding in the other direction except Moldovan’s motorcycle. Vargo’s ear was struck by the motorcycle to the left of its front headlight, its front wheel and axle being instantly broken. It was then struck by the tractor-trailer on the right. Both men on the motorcycle, and apparently the motorcycle itself, were catapulted into the air and continued some distance past the point of collision. Both men on the motorcycle were badly injured, plaintiff’s decedent dying shortly after the accident. Whether the collision occurred in the center lane or in the left lane — the farthest from Vargo’s side — and whose fault it was, were the crucial questions at the trial.

The facts, as will hereinafter more fully appear, are very unusual. Vargo sued Moldovan and recovered a verdict against him, which was affirmed by the Court en banc. Moldovan took no appeal from the judgment which was duly entered on this verdict. Moldovan testified at each trial that he never saw the tractor-trailer or Vargo’s car until the moment of impact, although there was nothing to obstruct his view.

Vargo testified that Moldovan was driving about 50 miles an hour; that after he (Vargo) pulled into the center lane in order to pass .the tractor-trailer, he observed the motorcycle approaching in the opposite direction in its right-hand lane; that as he started to angle his car back into his right-hand lane to complete his passing of the tractor-trailer, he saw the motorcycle driver (Moldovan) turn his head to the right of the motorcycle and at the same instant the motorcycle swung left into the center lane about 75 feet away from Vargo and quickly crashed into Vargo’s car.

Mrs. Lodor, stepdaughter of Vargo, corroborated Vargo’s testimony that he was at no time in the left lane and that “The motorcycle driver [Molodovan] turned his head to his right^* and as he did so the cycle came into the middle lane and the collision occurred.”

Vincent Benedetti, the driver of the tractor-trailer, corroborated Vargo in all his testimony and particularly that the collision occurred in the middle lane. Benedetti’s seat on the tractor-trailer was so high that it enabled him to see over the top of automobiles and “he had noticed the cycle driver turn his head and then come into the center lane just before the collision”.

James Bernick, Chief of Police, interviewed Moldovan very shortly after the accident and testified, without contradiction (by Moldovan) that Moldovan said “he grabbed for his cap and turned his head momentarily and the boy behind yelled, ‘Look out, you are going to crash’, and it was too late to do anything about it.” This corroborated the testimony of all of Vargo’s witnesses.

Plaintiff produced two witnesses — Baymond Biggs and Merle Brown. Biggs was waiting for approximately an hour at the Boston end of the bridge, intending to hitchhike to Buena Vista, even though he was standing on the wrong side of the road to secure a lift. He was approximately 900 feet away from where the collision occurred. He testified that Vargo’s car swung into his wrong lane of traffic. He did not see or know that there had been any collision although thereafter he ran to the accident. He knew Moldovan and the decedent, but although he went to the hospital with them, he did not give his name as a witness or appear at the coroner’s inquest; nor did he ever talk to anyone about the accident for several years thereafter. He testified that the Vargo car was in the left-hand lane when he got to the scene of the accident. His testimony was filled with contradictions, conflicts and confusion.

Merle Brown was an inmate of the Western State Penitentiary, serving two sentences for burglary. He was near the place where the accident occurred. He testified that Vargo’s car was in its center lane and all at once it swerved sidewise and slid and finally struck the girder of the bridge. He thought the reason for the collision Avas that the Chevy must have cut too short in front of the tractor-trailer and must have been struck by the tractor. He did not testify at the coroner’s inquest and although he saw the family of the decedent frequently at the hospital and at their home, he did not testify at the trial of Vargo v. Moldovan. His testimony, in important matters, was contradicted by every other Avitness.

Vargo proved by himself and his stepdaughter, and by the Chief of Police, and by the driver of the tractor-trailer, that his car aa^s stopped in the middle lane after the collision, and that in order to allow traffic to cross the bridge, the police moved Ms car from the middle lane partially into the left lane in order to allow traffic to proceed.

Yargo contends that not only was the verdict against the weight of the evidence, but that the evidence of plaintiff’s witnesses was incredible. The trial Judge refused a new trial because “Bigg’s testimony, although contradictory in certain respects, is not so incredible as to warrant a new trial”.

When a trial Judge grants a new trial or refuses to grant a new trial because the verdict was against the weight of the evidence, the law is clearly settled that an appellate Court will not reverse unless there is a clear abuse of discretion or an error of law which necessarily controlled the grant (or refusal) of a new trial: Clewell v. Pummer, 388 Pa. 592, 131 A. 2d 375; Mozino v. Canuso, 381 Pa. 220, 120 A. 2d 300; Edelson v. Ochroch, 380 Pa. 426, 111 A. 2d 455; Wilt v. Blazier, 382 Pa. 143, 114 A. 2d 111; Foster v. Waybright, 367 Pa. 615, 80 A. 2d 801.

Considering (a) not only the evidence which we have hereinabove summarized, but (b) the further important fact that the jury returned a verdict in favor of Moldovan when he was clearly guilty of negligence or of contributory negligence, and (c) the further fact that a jury had found Moldovan to be guilty of negligence in this very accident in the suit of Yargo v. Moldovan — although that fact was inadmissiMe in the actual trial of the instant case — we are convinced that under these unusual facts and circumstances the lower Court was guilty of a manifest abuse of discretion and a new trial must be granted in the interest of justice.

Judgment reversed and new trial granted.

* Italics throughout, ours.