Action arising out of intersectional collision of automobiles, wherein defendant filed counterclaim. The jury rendered a verdict for plaintiff, and defendant moved for new trial. The Superior Court, New Castle County, Richards, P. J., held that question of negligence by either plaintiff or defendant, with respect to lookout, yielding right of way, and speed, was for jury.
[47 Del. 416] The admitted facts of the case are that on September 8, 1950, about 3:10 in the afternoon an automobile operated by the defendant, which was proceeding South on Pine Street in Wilmington, Delaware, was involved in a collision at the intersection of Sixth and Pine Streets with an automobile owned and operated by the plaintiff which was proceeding West on Sixth Street.
The plaintiff alleged that the defendant was negligent in the following manner: that he failed to maintain a proper lookout for plaintiff's vehicle; that he failed to yield the right of way to plaintiff's vehicle; that he was proceeding at an excessive rate of speed and that he had the last clear chance to avoid striking plaintiff's vehicle.
These acts of negligence were denied by the defendant, who filed a counterclaim alleging similar acts of negligence on the part of the plaintiff or his agent or both.
The jury rendered a verdict for the plaintiff and the pending motion for a new trial
was duly made. The reasons relied upon for new trial are that verdict is contrary to the weight of the evidence; that there is no substantial evidence that the defendant is guilty of negligence; that there is substantial evidence that the plaintiff is guilty of negligence, either sole or contributory; that the defendant did not learn that Sergeant Coulter of the Wilmington Police Force, for whom a subpoena was properly issued was ill until the trial was well under way, and an attempt to secure the police records which had been removed from the file by Sergeant Coulter and taken from the Public Building, was unsuccessful; that new evidence had been discovered since the trial in the form of a witness who was unavailable at the time of trial and unknown to the defendant at that time.
It was agreed by counsel that the doctrine of last clear chance did not apply to this case.
Frank J. Miller, Wilmington, for plaintiff.
Donald W. Booker, Wilmington, for defendant.
RICHARDS, President Judge.
Rule 59(a) provides that a new trial may be granted to all or any of the parties, and on all or any part of the issues, in an action in which there has been a trial, for any of the reasons for which new trials have heretofore been granted in actions at law in the Superior Court.
This Court has consistently held that the jury is the exclusive judge of the evidence, and also the exclusive judge to what constitutes the preponderance of the evidence. It has refused to set aside a verdict of the jury when there is sufficient evidence in the record to support it.
[47 Del. 418] Where the evidence is conflicting but sufficient evidence may be gathered therefrom to support a verdict for either party, the issue of fact will be left to the jury. Under such circumstances, the Court will neither direct a verdict for either party nor disturb ...