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PRYOR v. GRAFF. (11/16/55)

November 16, 1955

PRYOR, APPELLANT,
v.
GRAFF.



Appeal, No. 175, Oct. T., 1955, from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1952, No. 4292, in case of Charles Pryor v. Walter Graff. Judgment affirmed.

COUNSEL

H. Somerson, with him Elliott M. Winer, and Winer, Einhorn & Somerson, for appellant.

John J. McDevitt, 3rd, with him Peter P. Liebert, 3rd, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 179 Pa. Super. Page 623]

OPINION BY ERVIN, J.

This appeal is from the refusal of the court below to grant plaintiff's motion for a new trial after a verdict in his favor.

On May 29, 1950 the plaintiff was injured in an automobile accident which occurred on the Admiral Wilson Boulevard, Camden, New Jersey, when the 1950 Ford two-door sedan being driven by the plaintiff, which was halted in a line of traffic, was struck in the rear by an automobile driven by the defendant. As a result of the collision plaintiff was catapulted from the driver's seat into the rear of his automobile. Defendant admitted liability for the accident at the outset of the trial and the trial was thus limited to the issue of damages. Despite the admission of liability the trial lasted four days during which time extensive medical testimony was introduced by both plaintiff and defendant, comprising over 400 pages in the printed record submitted to us. The case was tried before a judge and jury resulting in a verdict for the plaintiff in the amount of $1,000.00. Plaintiff's motion for a new trial was refused and judgment was entered on the verdict. On appeal plaintiff alleges the court below should have granted his motion for a new trial (1) because of inadequacy of the verdict; and (2) because

[ 179 Pa. Super. Page 624]

    the court erred in a portion of its charge relating to the measure of damages.

The refusal of a new trial because of alleged inadequacy of the verdict is a matter peculiarly within the discretion of the trial court, and the appellate court will not reverse unless the verdict is so unreasonable as to bring a conviction that it was influenced by partiality, passion or prejudice, or by some misconception of the law or evidence in the case. Mohler, Admrx. v. Worley, Admrx., 179 Pa. Superior Ct. 56, 116 A.2d 342. There is no claim of partiality, prejudice or passion on the part of the jury in this appeal. Appellant contends, in effect, there was a misconception of the evidence.

At the time of the accident on May 29, 1950 the plaintiff was 41 years of age and was employed by the Chicago Pneumatic Tool Company which is engaged in the business of manufacturing and selling automatic tools used in the repair of automobiles. Plaintiff had been employed by the company as a salesman on a six months trial basis on September 15, 1949. On March 15, 1950 he had completed a course of training for his work as salesman during which he had been paid a straight salary of $250.00 per month. After the completion of his training period he was paid a base salary of $150.00 per month plus 5% commission on all sales in his territory. He had assumed his duties as a salesman approximately two months prior to the accident. His original territory included Eastern Pennsylvania (east of Altoona), New Jersey (south of Trenton) and all of Delaware. On May 15, 1950, two weeks before the accident, the State of Maryland was added to his territory.

Although plaintiff testified that after the impact he had a "terrific throbbing in the back of my head

[ 179 Pa. Super. Page 625]

    and on top" and that his leg pained him he was able to fix up the seat of his car and drive it to his home in Philadelphia. After he reached his home he testified the throbbing in his head got worse and his knee started paining him so he had his wife call Dr. Freedman, the family doctor, who gave him some sedatives and ordered him to bed. Dr. Freedman treated him at home for two weeks and then later at his office. Dr. Freedman also had X-rays taken which were negative. Plaintiff remained in bed one week and was away from his employment for a total of four and one-half weeks. Dr. Freedman gave plaintiff eleven treatments. Later, plaintiff consulted Dr. Raymond Bailey, who gave him osteopathic treatments during the period from August to December, 1950. In the meantime the plaintiff had returned to work on a full time basis though he did lose six days of work from the time he resumed full time work to the end of the year. Shortly after the accident and prior to his resumption of work on a full time basis ...


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