Appeal, No. 221, Jan. T., 1959, from order of Court of Common Pleas of Lancaster County, April T., 1958, No. 38, in case of Harry A. Keefer et al. v. Wayne J. Byers. Order reversed. Trespass for personal injuries. Before JOHNSTONE, J. Verdict for plaintiff in amount of $8000; defendant's motion for new trial granted and order entered. Plaintiff appealed.
James P. Coho, for appellant.
W. Hensel Brown, with him Brown & Zimmerman, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
In this trespass action for damages for personal injuries suffered by the plaintiff in a collision between his automobile and defendant's truck, the jury returned a verdict in the sum of $8,000 for plaintiff Keefer.*fn* The defendant moved for judgment n.o.v. and for a new trial. The motion for judgment n.o.v. was abandoned
by counsel at the argument on the new trial motion. The court awarded the defendant a new trial because of an absence of instruction to the jury with respect to certain testimony introduced at trial by the plaintiff. The court concluded that the cited omission from the charge, even though unexcepted to or complained of by the defendant, constituted basic and fundamental error. The plaintiff has appealed, assigning for error the new trial order and the court's failure to enter judgment on the verdict.
Ordinarily, upon an appeal from the grant of a new trial, the appellant has the very heavy burden of endeavoring to establish that the action of the court below in such regard constituted a clear and palpable abuse of discretion: Muroski v. Hnath, 392 Pa. 233, 237, 139 A.2d 902; Braughler v. Commonwealth, 388 Pa. 573, 581, 131 A.2d 341; Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 276, 64 A.2d 829. However, where it clearly appears, either by certificate of the trial court or in its opinion on the new trial motion, that, except for the reason relied upon by the court for granting a new trial, judgment would have been entered on the verdict, the action of the lower court becomes reviewable, not for an abuse of discretion, but for the legal merit of the sole and exclusive reason assigned for the granting of the new trial: Culver v. Lehigh Valley Transit Company, 322 Pa. 503, 511, 186 A. 70. The latter contingency is the situation disclosed by the record in the instant case. The opinion for the court below makes it indisputably plain that, except for the reason deemed by the court as requiring a new trial, judgment would have been entered on the verdict for the plaintiff. We therefore have for review the merit, as a matter of law, of the reason assigned by the court below for its action.
The plaintiff, who was his only witness as to the happening of the accident, testified to facts from which
the jury could find that negligence on the part of the defendant was the proximate cause of the collision. On cross-examination, he was interrogated at length by factually ladened questions which strongly suggested that his version of the collision was a belated fabrication. To offset the impeaching effect of the cross-examination, the plaintiff called, as a witness, his son who was permitted to testify, over the defendant's objection, that the plaintiff had told him, a few days after the accident, at the hospital to which the plaintiff had been removed following his injury, that the collision had happened in a manner which did not differ materially from the narrative which the plaintiff himself had related on the witness stand. The admission of the son's testimony for the purpose of re-establishing the plaintiff's credit as a witness to the accident was a sound exercise of the trial judge's discretion. The son's testimony qualified as a ...