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CLEWELL v. PUMMER (04/26/57)

April 26, 1957

CLEWELL
v.
PUMMER, APPELLANT.



Appeals, Nos. 124 and 125, Jan. T., 1957, from judgments of Court of Common Pleas of Bucks County, May T., 1953, No. 52, in case of Harry Clewell et ux. v. Frank Pummer et ux. Judgments reversed.

COUNSEL

Sidney L. Wickenhaver, with him Frederick E. Smith, C. William Freed, Ross & Smith, and Montgomery, McCracken, Walker & Rhoads, for appellants.

Laurence H. Eldredge, with him William M. Power, and Paul A. McGinley, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.

Author: Bell

[ 388 Pa. Page 594]

OPINION BY MR. JUSTICE BELL

Plaintiffs brought an action of trespass against the owners of a country inn. While descending from their relative's apartment on the third floor of the inn, at about 1:30 a.m. on June 3, 1951, plaintiffs opened a door on the second floor, believing they were on the first floor,*fn* and stepped out onto a sloping roof from which they fell to the ground, sustaining serious injuries. Plaintiffs recovered verdicts totaling $33,700. Defendants moved for judgment non obstante veredicto and for a new trial. The lower Court entered a judgment n.o.v. for the defendants upon the two-fold ground that plaintiffs had failed to prove negligence and that they were guilty of contributory negligence as a matter of law. The negligence alleged by plaintiffs was that the defendants had a second floor doorway in such a position that it could be mistaken for a ground floor exit, without having such door locked and without having any warning sign. The lower Court having entered a judgment n.o.v., did not pass on defendants' motion for a new trial.

Plaintiffs appealed to this Court which, in Clewell v. Pummer, 384 Pa. 515, 121 A.2d 459, reversed the

[ 388 Pa. Page 595]

    judgment n.o.v. and said: "In the lower Court the defendants filed a motion for new trial which was not disposed of by the Court in view of its conclusion that the plaintiffs were barred from recovery because of culpable negligence. The defendants are entitled to have the lower Court pass on their motion for a new trial and, if dissatisfied with the Court's decision in that respect to re-appeal to this Court.

"The judgments entered by the Court below are reversed and the record is remanded for action not inconsistent with this Opinion."

Thereafter the Record was remanded to the lower Court and counsel for both parties argued before the lower Court defendants' motion and reasons for a new trial. The lower Court dismissed the motion for a new trial, believing that this Court had decided that the lower Court was not empowered to grant a new trial. The lower Court misapprehended this Court's decision in Clewell v. Pummer, 384 Pa., supra. What this Court decided in that case, and all that we decided, was that the lower Court could not hold as a matter of law that plaintiffs had failed to make out a prima facie case of negligence or that plaintiffs were guilty of contributory negligence as a matter of law. We did not pass upon the questions of "the weight of the evidence, or the credibility of witnesses, or any alleged trial errors"; we only decided, we repeat, that considering plaintiffs' evidence in the light most favorable to them, they made out a prima facie case. Moreover, as above cited, this Court in its opinion said: "The defendants are entitled to have the lower Court pass on their motion for a new trial and, if dissatisfied with the Court's decision in that respect to re-appeal to this Court."

The lower Court wrote a clear, comprehensive and convincing opinion in which it said that if it had the power to grant a new trial it would do so because the

[ 388 Pa. Page 596]

    testified, or that the very precipitous manner in which they stepped over a doorsill five and one-half inches high and through the doorway into total darkness, as they themselves described, constituted the exercise of due care on their part. From a consideration of all the testimony in the case, including that of other witnesses on their behalf, we have doubt that the conditions of light in the hallways were so deficient as plaintiffs tried to make out, or that the wife-plaintiff was thereby compelled to hold onto Mrs. Schaffer's dress so that the former could not observe her surroundings as she followed the latter through the building earlier in the evening. (It is significant, incidentally, that Mrs. Schaffer was not called as a witness, she having a more protracted connection with the plaintiffs and the general situation leading up to the accident than did her husband who was called on plaintiff's behalf.)

"There are several instances in the record of inconsistencies, if not indications of outright falsehood, in the evidence given by plaintiffs and some of their witnesses. One glaring example of this was the testimony of both the husband-plaintiff and Mr. Schaffer with respect to the physical existence of an outside storm door in the doorway in question, in addition to the conventional inside door which the wife-plaintiff admitted opening just prior to the accident. ...

"... The overwhelming weight of the evidence leaves little or no doubt but that the [storm] door was physically hung on its hinges at the time in question. The witnesses' zeal to advance plaintiffs' case by voluntarily exaggerating the situation so as to deny in the obvious spirit of partisanship even that which was otherwise overwhelmingly shown, though not controlling on the merits, tends to cast doubt on their testimony as a whole.

[ 388 Pa. Page 598]

"Another indication of the lack of credibility of some of plaintiffs' witnesses was the evasive and equivocal type of answers which characterized much of their testimony. ...

"Another example is the husband-plaintiff's statement of the consequences of the fall to himself. ...

"... When [these references are] coupled with what we consider the inherent improbabilities in their version of the unfortunate affair, however, we would conclude, were we free to do so, that a new trial should be had ..."

Where a trial Judge or Court sees and hears the witnesses, it has not only an inherent fundamental and salutary power, but it is its duty, to grant a new trial when it believes the verdict was capricious or was against the weight of the evidence and resulted in a miscarriage of justice: Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857; Wilson v. Kallenbach, 332 Pa. 253, 2 A.2d 727; Campbell v. Philadelphia Transportation Co., 366 Pa. 484, 77 A.2d 437; Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188; Maloy v. Rosenbaum Co., 260 Pa. 466, 103 A. 882; Frank v. Losier & Co., Inc., 361 Pa. 272, 64 A.2d 829; Dinan v. Supreme Council C.M.B.A., 213 Pa. 489, 62 A. 1067. In such a case we will not reverse, unless there is a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial: Edelson v. Ochroch, 380 Pa. 426, 111 A.2d 455; Foster v. Waybright, 367 Pa. 615, 80 A.2d 801; Mozino v. Canuso, 384 Pa. 220, 120 A.2d 300.

In Coward v. Ruckert, 381 Pa. 388, 113 A.2d 287, Justice MUSMANNO, speaking for this Court, said (page 393): "In Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 276, this Court ... said: '... The granting of a new trial is an inherent power and immemorial right of the trial court and an appellate court will not find

[ 388 Pa. Page 599]

    fault with the exercise of such authority in the absence of a clear abuse of discretion. (citing cases) One of the least assailable grounds for the exercise of such power is the trial court's conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; especially in such a case is an appellate court reluctant to interfere.'"

Moreover, in such circumstances, namely, where the jury's verdict is capricious or against the weight of the evidence or results in a miscarriage of justice, it should not be allowed to stand, no matter how many new trials must be granted in the interest of justice: Elia v. Olszewski, 368 Pa., supra, and Maloy v. Rosenbaum Co., 260 Pa., supra. In Maloy v. Rosenbaum Co., 260 Pa., supra, the Court said (page 472):

"... While the ascertainment of the underlying facts, and the drawing of the inferences and final conclusions therefrom, are for the jury, even where strong conflicting oral evidence is produced by a defendant, yet, in every such instance, a grave responsibility rests upon the trial judge to see to it that no verdict contrary to the weight of the evidence or shocking to judicial conscience is allowed to stand, no matter how many new trials must be granted in order to effect the ends of ...


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