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McCloskey v. McKelvey

Superior Court of Delaware, New Castle County

May 3, 1961

Mary E. B. McCLOSKEY and Ralph A. McCloskey, Plaintiffs,
William J. McKELVEY, III, Defendant.

David B. Coxe, Jr. (of Coxe, Booker, Walls & Cobin), Wilmington, for plaintiffs.

F. Alton Tybout (of Prickett, Prickett & Tybout), Wilmington, for defendant.


This cause is before the Court on motion of plaintiffs for a new trial, [1] made after the verdict of the jury for the defendant.

[54 Del. 109] The action was brought by plaintiffs to recover damages growing out of the collision of two automobiles. The accident occurred on the inside lane of the three-lane DuPont Highway (Route 13), northbound, where Roosevelt Avenue, Wilmington Manor, crosses the DuPont Highway at right angles.

At the point where Roosevelt Avenue enters the DuPont Highway from the east, there is a stop sign. On July 20, 1958, at approximately 8:45 P.M., defendant came to a stop at the stop sign. The traffic on the DuPont Highway was heavy. The intersection was blocked and appeared impassible. The defendant lighted a cigarette and waited for an opportune time to cross the three northbound lanes to the paved area which cut through the grass divider between the north and south bound lanes, intending to proceed in a southerly direction on the DuPont Highway.

Defendant testified that vehicles were stopped in the outside and middle lanes of traffic to the south of the intersection from the southerly curbline of Roosevelt Avenue and that he saw no traffic on the inside lane. He stated that traffic north of the intersection was stopped on all three lanes and was backed up from a traffic light two intersections north of Roosevelt Avenue on the DuPont Highway. He claimed that the rear end of the automobiles in the outside and middle lanes north of the intersection was about a foot or two ahead of the extended northerly curbline of Roosevelt Avenue. The inside lane of traffic was also backed up and the rear of the car on this lane nearest the intersection extended into the intersection of Roosevelt Avenue on the north side.

Defendant claimed that the drivers in the two stopped cars on the outside and middle lanes south of the intersection indicated to the defendant by hand signal that he could cross the highway. At the time defendant started to cross the highway he stated that he could see down the inside lane to the south approximately 50 to 70 feet or about three or four car lengths, and that he saw no traffic coming from the south on [54 Del. 110] the inside lane. He said he was able to see through the space between cars backed up on the two easterly lanes to the south. Defendant claims that as he started across the highway, the car which was backed up into the intersection moved forward to a limited extent to permit him to get through. He then claims that as he was starting to enter the inside lane of traffic at a point where his windshield was even with the dividing line which runs between the inside and middle lanes, he again looked south on the inside lane and did not see any cars. He states that at this point he could see in a southerly direction approximately 100 feet or 'down to the gas station', and that he was traveling at a speed between 0 and 15

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miles per hour. He then claims that he looked forward in the direction in which he was going and then the accident occurred. He did not see plaintiff driver's automobile until the time of the collison or immediately prior thereto. At the time of the collision the front wheels of defendant's automobile were on the edge of the apron of the crossover. Defendant claims that plaintiff driver's automobile was traveling between 20 and 30 miles per hour.

Plaintiff driver contends that he was proceeding north on the DuPont Highway on the inside lane at a speed of 25 to 30 miles an hour. He claims that the automobiles in each of the two lanes to his right immediately prior to impact were close to each other and moving at a slow rate of speed. He explains that the traffic in his lane was not heavy and that at the time he and his wife approached the southerly curbline of Roosevelt Avenue, the car ahead of them in their lane was at least 50 feet away and moving. He then claims that defendant's car appeared suddenly in front of him without warning and that he swerved to the left and struck the defendant's car on the left front fender and door. The defendant's car was pointed straight across the highway at the time of impact.

No motion was made by plaintiffs for a directed verdict. Plaintiffs explain that the request was not made for tactical [54 Del. 111] reasons. Plaintiffs argue that this Court should grant a new trial, pursuant to Rule 59, to prevent a miscarriage of justice.

The Superior Court has ample power to grant a new trial to prevent injustice. Gatta v. Philadelphia, B. & W. R. Co., 2 Boyce 551, 83 A. 788; Woolley on Del. Practice, § 733. Rule 59 of the Superior Court Rules recognizes this principle. Tsai v. Rosenthal, D.C.Pa., 26 F.R.D. 393, 394. In passing on this motion, the Judge must weigh the evidence in order to determine if the verdict was one which might have reasonably been reached. Miller v. Pacific Mutual Life Ins. Co., D.C.Mich., 17 F.R.D. 121. In contradistinction, when the Judge considers a motion to direct a verdict he is not required to weigh the evidence. Instead, he views the evidence most favorable to the party against whom it is moved, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, he determines whether or not, under the law, a verdict might be found for the party having the burden. If not, the Judge should, upon the ground that the evidence is insufficient in law, direct a verdict against that party. Mt. Adams & E. P. Inclined R. Co. v. Lowery, 6 Cir., 74 F. 463, 477; Felton v. Spiro, 6 Cir., 78 F. 576, 582. On a motion to grant a new trial the verdict must be manifestly and palpably against the weight of the evidence or for some reason, or a combination of reasons, justice would miscarry if it were allowed to stand. Eastern Air Lines Inc. v. Union Trust Co., 99 U.S.App.D.C. 205, 239 F.2d 25; Wade v. Lane, D.C.D.C., 189 F.Supp. 661, 663; 6 Moore's Federal Practice 3818-19; 3 Barron & Holtzoff, Federal Practice and Procedure § 1304. It is not a sufficient ground for a new trial that the verdict is merely against the preponderance of the testimony, or that the Court may have arrived at a different result. Weed v. Lyons Petroleum Co., D.C.Del., 294 F. 725, 733.

[54 Del. 112] Judge Parker, in Garrison v. United States, 4 Cir.,62 F.2d 41, at page 42, expressed his view on ...

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