Before GOODRICH, KALODNER and STALEY, Circuit Judges.
The plaintiff, Eleanor B. Halprin, mother of Lawrence W. Halprin, a 13-year-old boy who died as a result of injuries sustained in an automobile collision, appeals from a judgment entered in favor of defendant Andre Mora and third-party defendant Clarence W. Davis. Plaintiff, as administratrix of the minor's estate, sued Mora, alleging that Mora's negligence was responsible for the collision which caused the boy's death. Mora was driving the car in which the boy was riding when the collision occurred. Mora brought in as third-party defendant Clarence W. Davis, driver of the other car involved in the collision.
Plaintiff claims on this appeal that for several reasons the district court abused its discretion in refusing plaintiff's motion for a new trial. First, according to plaintiff, the jury's conclusion that neither defendant nor third-party defendant was negligent was manifestly unreasonable on any view of the evidence.
The only eye-witnesses who testified as to the manner in which the collision occurred and the surrounding circumstances were the defendant Mora and the third-party defendant Davis. Plaintiff analyzes this testimony and concludes that defendant Mora's testimony clearly showed that third-party defendant Davis was negligent and that Davis's version of the accident just as clearly indicates that Mora was negligent. Thus, says plaintiff, no matter who the jury believed, it could not reasonably have found that neither driver had been negligent.
The district court in denying the motion for a new trial pointed out that in essential aspects the jury could have reconciled Mora's testimony with Davis's and found that the plaintiff had failed to sustain the burden of proof. Plaintiff says this can only be done by "going outside the evidence." A brief statement of facts will pinpoint the disagreement.
The collision occurred in the center of the northernmost lane of a three-lane highway which runs east and west. Davis said he was at all times traveling west in the northernmost lane and that mora's car, which was traveling in the opposite direction (east), crossed the road and collided with Davis's car. Mora testified that he was traveling east in the southernmost lane and pulled into the center lane to pass another car. While he was passing in the center lane, a light-colored car traveling west pulled out of the northernmost lane into the center lane. Mora said that he put on his brakes. When he did so his car swerved into the northernmost lane (the record is silent as to why the brakes did not work properly) and collided with Davis's car.*fn1
The district court said that the jury could have found that Davis was free of negligence if it believed that he never left his lane and could not have avoided the accident. Also that if the jury believed that Mora's brakes failed to work properly, then it could reasonably have concluded that negligence by Mora had not been established. The movement of the light-colored car into the center lane by which Mora was confronted with a sudden emergency could have been the cause of the accident.
Plaintiff, in the brief, seems to concede that had the evidence warranted a finding that there was a light-colored car (not Mora's or Davis's) in the center lane, the jury's conclusions would be reasonable. But, says the plaintiff, there was no such car. Davis's car was a light-colored car, and it was Davis who pulled into the center lane when Mora was in the act of passing. According to the plaintiff, Mora's testimony established beyond doubt that the light-colored car was actually Davis's car, not some other car. Plaintiff's view of the testimony seems to us to be without merit.
Mora said that a light-colored car was in the center lane, and it was established that Davis's car was a light-colored one, but to say that Mora was certain that the center-lane car was Davis's is to read into the evidence something which is not there.
Mora specifically said he could not state that Davis's car was in the center lane. In addition, he said that he did not see the center-lane car pull back into the northernmost lane, which was where the collision occurred, and at one point he said he did not know what happened to the center-lane car after he swerved into the northernmost lane.
There is really no need to set forth the testimony in detail. An examination of what Mora and Davis said compels the conclusion that the jury's findings as to negligence were reasonable.
Plaintiff next argues that the evidence submitted to the jury established prima facie negligence on the part of Mora. Under Pennsylvania law,*fn2 "The presence of an automobile on the wrong side of a highway is prima facie evidence of the driver's negligence * * *." See Richardson v. Patterson, 1951, 368 Pa. 495, 84 A.2d 342, 343; Miles v. Myers, 1946, 353 Pa. 316, 318, 45 A.2d 50, 51.
But the Richardson case also pointed out that "'The skidding of a vehicle does not of itself establish or constitute negligence. It is incumbent upon the plaintiff to prove the skidding resulted from the negligent act of the defendant; otherwise he is absolved from the consequences.'" 84 A.2d at page 343. In the case at bar the evidence warranted an inference that the Mora car had skidded or swerved onto the wrong side of the road. Davis was not sure whether Mora's car skidded, but Mora testified that it did. Mora's testimony was that the failure of the brakes caused the accident, and plaintiff did not introduce contrary evidence. In Ferrell v. Solski, 1924, 278 Pa. 565, 123 A. 493, the defendant's car swerved to the wrong side of the road and hit a telephone pole. The court said that since there ...