Summary
In Weiner v. Reading Co., 119 Pa. Super. 375, 181 A. 381, plaintiff also drove his car into a moving train, and that case and Everetts v. Penna. R.R. Co., 330 Pa. 321, 198 A. 796, adopted and followed the reasoning in the Wink case.
Summary of this case from Blaskey v. Penna. R.R. Co.Opinion
October 9, 1935.
November 13, 1935.
Appeals — Review — Findings of trial judge sitting without jury.
On appeal from judgment entered on the findings of the trial judge, sitting without a jury, judgment must be affirmed if there is evidence, however unlikely or untruthful it appears to the appellate court, which if believed, would justify the judgment appealed from.
Appeal, No. 157, Oct. T., 1935, by defendant, from judgment of M.C., Phila. Co., July T., 1934, No. 296, in case of Robert H. Weiner v. Reading Company.
Before KELLER, P.J., BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Affirmed.
Trespass for personal injuries. Before GLASS, J., without a jury.
The facts are stated in the opinion of the Superior Court.
Finding for plaintiff in the amount of $500 and judgment thereon. Defendant appealed.
Error assigned, among others, was refusal of motion for judgment n.o.v.
Henry R. Heebner, with him Wm. Clarke Mason, for appellant.
Maurice E. Cohen, for appellee.
Argued October 9, 1935.
The judges of this court, who heard this case, are all of the opinion that the clear preponderance of the evidence required a verdict, or finding, for the defendant. It establishes to our satisfaction that the plaintiff carelessly ran his automobile, an hour or two after midnight, into the side of a slowly moving freight train and, in consequence, was not entitled to recover any damages from the defendant. See Wink v. Western Maryland Ry. Co., 116 Pa. Super. 374, 176 A. 760.
But we are not the triers of fact, and there was evidence — however unlikely or untruthful it appears to us — which, if believed, would justify the judgment appealed from. The trial judge, sitting without a jury, evidently believed it, and however reluctant we are to do so, we have no recourse but to affirm the judgment.
Judgment affirmed.