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LUPI v. KEENAN. (05/28/59)

May 28, 1959

LUPI, APPELLANT,
v.
KEENAN.



Appeal, No. 39, Jan. T., 1959, from order of Court of Common Pleas of Delaware County, Sept. T., 1956, No. 406, in case of Serafino Lupi, Jr. v. Joseph Keenan et al. Order affirmed. Trespass for assault and battery. Before SWENEY, P.J. Verdict returned for plaintiff in amount of $28,028.21 and against both defendants; defendants' motions for judgment n.o.v. refused and motions for new trial granted and order entered. Plaintiff appealed.

COUNSEL

Max W. Gibbs, for appellant.

Paul C. VanDyke and Robert W. Beatty, with them Ernest L. Green, Jr., and Cochrane and VanDyke, and Butler, Beatty, Greer & Johnson, for appellees.

Before Musmanno, Jones, Cohen and Bok, JJ.

Author: Bok

[ 396 Pa. Page 7]

OPINION BY MR. JUSTICE BOK

Plaintiff has a jury's verdict for personal injuries in the sum of $28,028.21. The propriety of granting a new trial by the court below is the question before us.

Plaintiff visited several other taprooms and drank there before he finally entered defendants' establishment. During the twenty minutes he was there he ordered more drink and had change for twenty dollars lying on the bar. For some reason not now important, Keenan, Jr. ejected him, threw him to the sidewalk, and beat him. Someone pulled the younger defendant away after the older defendant had tried to prevent anyone from interfering. Plaintiff got to his feet and wanted to return to the bar to get his money. He then described his injury as follows: "We started scuffling again. I couldn't take any more. I was wrestled, backing up to protect myself, felt a crash, and hurt myself. ... I crashed into the window. ... I didn't swing at the window.... Q. What cut your arm? A. The glass."

This is plaintiff's full description of how he was hurt.

He suffered a serious cut at the inner fold of the elbow and no other cuts on the arm or hand.

Defendants' bartender, called as a witness by the plaintiff, testified that Keenan, Jr. ejected the plaintiff and then returned and locked the door. He added: "I believe he [Keenan] was inside when I heard the crash and I thought someone had thrown a bottle through it [the window] or something."

[ 396 Pa. Page 8]

The defense, given by both defendants and by at least seven other witnesses, was that plaintiff, either in a jury or while trying to strike a third person, put his fist through the window from the street while the defendants were inside.

The court below outlined this evidence and justified the new trial on the ground that "plaintiff failed to 'describe, picture, or visualize what actually happened' and because the jury's verdict is clearly against the weight of the evidence. We go so far as to say that '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 right may be given another opportunity to prevail': Jones v. Williams, 358 Pa. 559 (1944)."

In view of this statement, of the obvious weight and shape of the defendants' evidence, of the obscure and meagre account given by the plaintiff, and of the contradicting evidence of plaintiff's own witness, the bartender, that Keenan, Jr. was inside when the window was broken, plaintiff has not sustained the heavy burden he must carry to upset the grant of a new trial. We will not reverse unless there is a clear abuse of discretion or an error of law which necessarily controlled the result and was so certified by the court below: Mozino v. Canuso, 384 Pa. 220, 120 A.2d 300 (1956); Hartigan v. Clark, 389 Pa. 283, 133 A.2d 181 (1957); Byers v. Vargo, 389 Pa. 365, 133 A.2d 163 (1957).

The courts do not sit as boards of assessors to tally up damages for all who are injured. Where a verdict is so greatly against the weight of the evidence as to be a shock to the judicial conscience a court has not only the right but the duty to disagree with the jury and to overturn its verdict, no matter how many trials need be had in the ...


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