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December 9, 1958


Appeals, Nos. 25 to 30, inclusive, April T., 1958, from judgments of Court of Common Pleas of Allegheny County, July T., 1954, No. 2861, in case of Mary Hollins et al. v. Pittsburgh Railways Company. Judgments affirmed.


Dennis C. Harrington, with him James P. McArdle, for appellants.

Earl W. Brieger, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Wright

[ 188 Pa. Super. Page 142]


On February 8, 1954, Mary, Benjamin, and Jerry Hollins, then aged 8, 10, and 11 years, respectively, were traveling to school as passengers on a bus owned and operated by the Pittsburgh Railways Company. While proceeding down Josephine Street, which was icy at the time, the bus slid to the side and collided with a wooden telegraph pole. Clyde Hollins, parent and natural guardian of the children, brought suit in trespass on their behalf and in his own right, alleging that the bus had been operated negligently and that the children had suffered injuries as a result. After a three-day trial the jury returned the following verdicts, the form of which was in accordance with the instruction of the trial judge: "March 22, 1957, we, the Jurors empanelled in the above entitled case, find for the plaintiff Mary Hollins - $100, Clyde Hollins - $60; Benjamin Hollins - $600; Clyde Hollins - $70; Jerry Hollins - 0; Clyde Hollins - $220". The plaintiffs filed a motion for a new trial and the defendant filed a motion for judgment n.o.v., both of which motions were refused. Judgments were subsequently entered on the verdicts, and these appeals by the plaintiffs followed.

[ 188 Pa. Super. Page 143]

The contention of counsel for appellants is that the verdicts are inconsistent and inadequate.

Appellants rely principally on Pascarella v. Pittsburgh Railways Co., 389 Pa. 8, 131 A.2d 445, wherein Mr. Justice MUSMANNO said: "Once a jury imposes legal liability on a responsible party, they may not wilfully or capriciously withhold payment of an item which is inextricably interwoven in the pattern of the liability". In the Pascarella case three minors were seriously injured, one of them fatally. On motion of the plaintiffs, the lower court granted a new trial. The following statement by Mr. Justice (later Chief Justice) STERN in Carpenelli v. Scranton Bus Co., 350 Pa. 184, 38 A.2d 44, is particularly appropriate: "When a court grants a new trial on the ground of inadequacy of the verdict an appellate court, in the absence of a gross abuse of discretion will not interfere ... When a trial court refuses to grant relief against an allegedly inadequate verdict an appellate court will exercise even greater caution in reviewing its action". See also Kobsar v. Johnson, 185 Pa. Superior Ct. 510, 138 A.2d 872.

The grant or refusal of a new trial for inadequacy of the verdict is a matter for the sound discretion of the trial court. Its action will not be reversed on appeal except for a clear abuse of that discretion, such as where the verdict is so unreasonably low as to present a clear case of injustice: Takac v. Bamford, 370 Pa. 389, 88 A.2d 86. If the verdict bears a reasonable resemblance to the damages which were proven, it is not the function of this court to substitute its judgment for that of the jury: Mohler v. Worley, 179 Pa. Superior Ct. 56, 116 A.2d 342. It is the province of the jury to appraise the testimony and to accept or reject the estimates given by the witnesses: Perzak v. Coulter, 171 Pa. Superior Ct. 475, 90 A.2d 256; Elza

[ 188 Pa. Super. Page 144]

    not without significance that a subsequent trespass action based on a later accident was entered upon Jerry's behalf wherein claim is made for the identical injuries alleged in the present case. It is understandable that the jury concluded that Jerry sustained no compensable injuries. The award to the parents of the amount of the medical bill is not inconsistent with this finding. We agree with Judge LEWIS in his well-considered opinion for the court en banc that "it is quite conceivable, however, that the jury took the attitude that the accident having been caused by the negligence of the bus driver, the parents of the minor child should not be put to the expense of finding out if the accident caused any substantial injury to the child, and awarded them the amount of the doctor bill".

The record as to Benjamin's case discloses a conflict between the testimony of appellants' dentist, Dr. Lewis, and the findings made at the hospital immediately following the accident. Without detailing the testimony of Dr. Lewis, it is sufficient to say that it is not entirely convincing. His estimate of the cost of necessary prosthetic devices to correct the alleged injury was so high ($1065.00) that, in the words of Judge LEWIS, "it is quite conceivable that the jury was not very much impressed with his opinion as to the cost of replacing the teeth, especially in view of the fact that the majority of them were of the age where teeth replacement had already become a necessity".

Appellants do not seriously question the award in Mary's case. They concede that "perhaps the court would be less shocked by the award of a total of $160.00". In this connection, Judge LEWIS was "of the opinion that the evidence indicates that the alleged injuries to Mary Hollins were very slight, and the verdicts ... were sufficient".

[ 188 Pa. Super. Page 146]

Our conclusion is that the verdicts here under consideration reflect a fair appraisal of the evidence. Except in Jerry's case, where the testimony fully warranted a finding of no injury, they were substantial and not merely nominal. They bear a reasonable resemblance to the damages proven. See Pryor v. Graff, 179 Pa. Superior Ct. 622, 177 A.2d 818. We find no abuse of discretion in the refusal to grant a new trial.


Judgments affirmed.


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