Appeals, Nos. 21 and 44, March T., 1956, from order of Court of Common Pleas of Allegheny County, July T., 1951-A, No. 2525, in case of Mary K. Helz et vir v. City of Pittsburgh et al. Order affirmed. Trespass for personal injuries. Before COLUMBUS, J. Verdict for plaintiffs in sum of $7000 and against both defendants with liability over in favor of municipal defendant against individual defendant; plaintiffs' motion for new trial granted. Defendants, respectively, appealed.
James J. Burns, Jr., for individual defendant, appellant.
Thomas E. Barton, Assistant City Solicitor, with him J. Frank McKenna, Jr., for City of Pittsburgh, appellant.
John E. Evans, Jr., with him Thomas P. Mulvaney, James J. Burns, Jr., and Evans, Ivory & Evans, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
These respective appeals by the defendants, viz., an individual property owner and the City of Pittsburgh, are from the order of the court below refusing their separate motions for judgment n.o.v. and awarding the plaintiff a new trial on her motion. The action is in trespass for damages for injuries received by the plaintiff as the result of a fall caused by the teetering of the metal cover of a cylindrical sunken housing of a water meter. The cover was at ground level and located between the paved portions of the sidewalk and the curb in front of the property of the individual defendant. The meter was on the service line running from the City's water main in the street to the house of the individual defendant.
The trial court instructed the jury that, if it found the cover of the meter housing was negligently maintained, the City would only be secondarily liable for the plaintiff's injuries and that primary liability would rest upon the property owner. In patent disregard of the court's instructions, the jury returned a verdict in favor of the plaintiff for $13,000 against the City alone. When the court attempted to mold the verdict so as to make it conform to its instructions with respect to the relative primary and secondary liabilities of the defendants, the jury objected. The $13,000 verdict was not accepted by the court nor recorded; and, after further instructions by the court, the jury was again allowed to retire to deliberate further. It later returned with a verdict for the plaintiff in the sum of $7,000 against both defendants jointly with liability over against the defendant property owner for the full amount of the verdict.
The $7,000 verdict was a virtual nullity. It plainly did not reflect a "true" verdict which is what the jury
was sworn to render. Obviously, the quantum of damages, to which the plaintiff was entitled in the event the jury found liability on the part of either or both of the defendants, could not possibly be made to depend upon whom the liability was fastened. Yet, the jury changed the amount of its verdict from $13,000 to $7,000 after it had been told by the court that, if it found the City liable, it would also have to find the property owner liable and place the liability over upon him for the full amount of the verdict. A verdict so obviously defective in amount could not be permitted to stand; and a new trial was accordingly indicated.
However, the defendants' respective motions for judgment n.o.v. necessarily had to be disposed of before a new trial could properly be awarded. The abortive result of the trial bears a striking analogy to where a jury, unable to agree upon a verdict, is discharged. In such instance, the motion of a party for judgment is upon the whole record and not judgment n.o.v.; and the entry by the trial court of an order for a new trial automatically disposes of the motion for judgment, and neither the court's action refusing judgment nor the granting of a new trial is appealable: see DeWaele v. Metropolitan Life Insurance Company, 358 Pa. 574, 58 A.2d 34. Even though the defendants' motions in the instant case were not nominally for judgments on the whole record (a verdict, albeit a ...