DocketNumber: Appeal, No. 241
Citation Numbers: 28 Pa. Super. 170
Judges: Beaver, Henderson, Morrison, Orlady, Porter, Rice, Smith
Filed Date: 5/17/1905
Status: Precedential
Modified Date: 2/18/2022
Opinion by
The single assignment of error relates to the refusal of the court to give binding instructions for the defendant. All other of defendant’s points for charge were affirmed, and there is no complaint as to the general charge.
This was clearly not a case for binding instructions. If plaintiffs’ testimony was true, the road was in bad condition at the place where, and at and immediately preceding the time when, the accident occurred, of which the supervisors of the township, or at least one of them, had been notified. The account given by the plaintiff, Mrs. Newman, who was the only person present, did not show that the accident was physically impossible. She was fully corroborated by several witnesses, who were first upon the ground after the accident, as to the physical surroundings which existed at the place where it occurred and which, taken in connection with her testimony, would reasonably account for it. These witnesses, it is true, were contradicted in several important particulars by a number of witnesses called on behalf of the defendant, whose testimony tended to show that the accident could not have happened as detailed in the testimony of Mrs. Newman; but the physical impossibility of the accident, according to her version of it, can only be predicated upon the assumption that defendant’s testimony as to the surroundings was true and that of the plaintiff false. Such an assumption, under the conditions here existing, no court has a right to make.
As we read Holden v. Penna. Railroad Co., 169 Pa. 1, it does not and was not intended, in any way, to overturn or vary this rule. That this is the understanding of our Supreme Court is plainly apparent from its subsequent rulings, the latest of which is found in Dinan v. Supreme Council, etc., 210 Pa. 456, in which it is said: “ Whatever the weight of the evidence may be, and whatever the action of the trial judge might be on a motion for a new trial, if there be a substantial controversy as to the facts and if its determination depends upon the credibility of witnesses, the question of appellee’s liability becomes one for the jury and appellants were entitled to have it submitted to the jury for its determination.” And again, in the concluding paragraph of the opinion: “ It may well be in a case that the weight of the evidence may be sufficient to justify a trial judge in setting aside successive verdicts, j^et it does not follow that he
The court below committed no error in refusing to give binding instructions for the defendant.
Judgment affirmed.