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GLAISTER v. EAZOR EXPRESS (11/18/57)

November 18, 1957

GLAISTER, APPELLANT,
v.
EAZOR EXPRESS, INC.



Appeal, No. 188, March T., 1957, from order of Court of Common Pleas of Allegheny County, April T., 1954, No. 2659, in case of Ann E. Glaister v. Eazor Express, Inc. Order reversed.

COUNSEL

Edward O. Spotts, with him Theodore M. Tracy, for appellant.

Joseph F. Weis, Jr., with him Weis & Weis, for appellee.

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

Author: Jones

[ 390 Pa. Page 487]

OPINION BY MR. CHIEF JUSTICE JONES.

The plaintiff appeals from an order granting a new trial in a trespass action, on the defendant's motion, for the assigned reason that the jury's verdict was excessive.

As we have so often said, an appellant has a very heavy burden, upon an appeal from the award of a new trial, to show reversible error. "We will not reverse an order awarding a new trial unless a palpable abuse of discretion on the part of the trial judge is disclosed or unless an erroneous rule of law, which in the circumstances necessarily controls the outcome of the case, is certified by the trial judge as the sole reason for his action:" Marko v. Mendelowski, 313 Pa. 46, 47, 169 A. 99. But that odes not mean that a trial court may grant a new trial out of hand or for reasons which do not rightly fall within the judicial orbit as confined by the jury's province. Otherwise, the granting of a new trial might possibly be from mere whim or caprice. The proper approach of judicial review on such an appeal was well stated by Chief Justice MAXEY in Jones v. Williams, 358 Pa. 559, 564, 58 A.2d 57, as follows: "While this Court usually supports the action of the trial court in granting or refusing a new trial we do not entirely abdicate our reviewing functions in such cases. This Court, too, has the duty to determine from the record whether or not the jury's verdict was so contrary to the evidence as to shock one's sense of justice and to make the award of a new trial imperative so that

[ 390 Pa. Page 488]

    right may be given another opportunity to prevail." The foregoing has since been quoted with approval a number of times: see Beal v. Reading Company, 370 Pa. 45, 48, 87 A.2d 214; Carroll v. Pittsburgh, 368 Pa. 436, 447, 84 A.2d 505; and Decker v. Kulesza, 369 Pa. 259, 263, 85 A.2d 413.

Inasmuch as the new trial in this case was not granted for an erroneous ruling of law, our inquiry is whether the court below abused its discretion in holding that the verdict was excessive. A careful consideration of the entire matter impels the conclusion that the new trial order lacks both factual and legal justification. There was neither direct conflict nor contradiction in the testimony adduced at trial, all of which came from witnesses called by the plaintiff. The defendant offered no testimony and expressly admitted liability. The only matter in issue, therefore, was as to the extent of the plaintiff's damages due to her tortiously inflicted injuries and consequent incapacity. It thus becomes unnecessary to relate the circumstances of the passenger automobile and tractor-trailer collision which inflicted the injuries in suit. On the question of the extent of the plaintiff's injuries and the damages she suffered thereby, the record discloses the following material facts.

At the time of the accident, the plaintiff was 30 years old, unmarried, and employed in a plant of the Schenley Distillers whence she was on her way home from work as a guest in the passenger automobile involved in the collision. Her work was on an assembly line and consisted of sealing, packing, and crating bottles. It was a type of work that could be performed only by a person of good physical condition. After the accident, the plaintiff experienced pain and ...


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