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MAINS v. MOORE (ET AL. (04/16/59)

April 16, 1959

MAINS
v.
MOORE (ET AL., APPELLANT).



Appeal, No. 157, Oct. T., 1959, from orders of Court of Common Pleas of Chester County, Jan T., 1956, No. 39, in case of Gerald Mains et al. v. Charles H. Moore, Jr. et al. Orders affirmed.

COUNSEL

G. Clinton Fogwell, with him Reilly, Wood & Fogwell, for additional defendant, appellant.

D. T. Marrone, with him MacElree, Platt & Marrone, for original defendant, appellee.

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

Author: Ervin

[ 189 Pa. Super. Page 432]

OPINION BY ERVIN, J.

This is an action in trespass growing out of the collision of two automobiles. Edward W. Harvey was the driver of a Ford sedan owned jointly by Gerald Mains and Ferne L. Mains, his wife's parents. Harvey had two adult passengers in his car, his wife, Mary Alice Harvey, and her mother, Ferne L. Mains. The other automobile was owned and operated by Charles H. Moore, Jr. Harvey was traveling northwardly on a rural road, State Highway No. 15077, an 18-foot wide blacktop road, from Northbrook to Marshallton in Chester County on December 29, 1954 in the middle of a rainy afternoon. At Dogtown, the scene of the accident, the road makes a fairly sharp left turn and a farm house on the left interferes with the vision of both northbound and southbound drivers. On the east side of the turn, and across the highway from the farm house, a small country road known as Wawaset Road heads off southeastwardly from Route 15077. For the

[ 189 Pa. Super. Page 433]

    first 100 feet from the intersection it is paved with macadam and then it becomes a dirt road. Moore was traveling southwardly on Route 15077, which he intended to leave at the intersection to proceed down Wawaset Road. Harvey testified that upon approaching the turn he was traveling at about 20 to 25 miles per hour. He saw the house and hedge on his left and as he negotiated the curve he saw the Moore car coming down the highway. He was on the right side of the road with the right side of his vehicle only one foot from the eastern edge of the paved surface and the left side of his vehicle one foot to the right or east of the roadway center in the curve. It was at this time, when he was almost stopped, that Moore attempted to cut in front of Harvey, crossing the northbound lane of Route 15077 to enter Wawaset Road. The right front of Moore's car came into contact with the left front of Harvey's car. Both drivers had traveled the highway before and were familiar with the area in question. Moore testified that he approached the intersection at about 30 to 35 miles per hour and slowed down as he came near the right-hand curve. Neither driver could see the other car until they were a short distance apart. The adult occupants of the Harvey car, together with Gerald Mains, absentee co-owner, brought suit against Moore for property damage and bodily injuries. By appropriate order the claim of Edward W. Harvey, as plaintiff, was severed from those of the other plaintiffs and thereafter Edward W. Harvey was joined as additional defendant in the claims of the other three plaintiffs against Moore on the grounds of sole liability or, in the alternative, joint and several liability. The cases were tried together and resulted in verdicts for the plaintiffs against defendant Moore alone. Edward W. Harvey was absolved from liability as additional defendant and won a verdict against Moore as defendant.

[ 189 Pa. Super. Page 434]

Plaintiffs filed motions for new trial on the grounds that all of the verdicts were inadequate. The court below determined that the verdicts were inadequate and granted new trials against both defendants. We agree with the court below that the verdicts were shockingly inadequate and that new trials should have been granted. The additional defendant, Edward W. Harvey, appealed. He argues that the new trials should have been granted against the original defendant, Charles H. Moore, Jr., "either generally or as to damages alone."

Ordinarily the grant of a new trial means a new trial generally; it restores a case to the status it had before the trial took place and is fully open to be tried de novo as to all parties and all issues: Pa. Co. for Ins. on Lives v. Lynch, 308 Pa. 23, 28, 162 A. 157; Iwankow v. Colonial Ins. Co., 120 Pa. Superior Ct. 114, 120, 181 A. 870.

When a court grants a new trial on the ground of inadequacy of verdict, an appellate court, in the absence of a gross abuse of discretion, will not interfere: Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295; Sherman v. Manufacturers L. & H. Co., 389 Pa. 61, 68, 69, 132 A.2d 255; Krusinski v. Chioda, 394 Pa. 90, 100, ...


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