Appeals, Nos. 435 and 493, Oct. T., 1959, from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1957, No. 3678, in case of Rosemarie Salemmo, now known as Rosemarie Frieman v. John P. Dolan. Order affirmed.
Walter W. Rabin, with him H. Mark Solomon, for plaintiff.
Michael Shekmar, for defendant.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 192 Pa. Super. Page 53]
On September 21, 1956 at about 8:30 P.M., Rosemarie Salemmo was riding as a passenger in a motor vehicle being operated by John P. Dolan in a northerly direction on Chestnut Hill Avenue in the City of Philadelphia. As the vehicle approached Shawnee Road, it left the highway and overturned. Miss Salemmo, now Mrs. Frieman, instituted a trespass action to recover damages for her serious personal injuries. The jury returned a verdict in her favor in the sum of $1,000.00. She presented a motion for a new trial as to damages only, or in the alternative a new trial generally, on the ground of inadequacy of the verdict. The court below subsequently granted a new trial generally. Both parties have appealed. The factual situation appears in the following excerpt from the opinion of President Judge FLOOD:
"At approximately 8:30 P.M. on a clear, dry evening, defendant Dolan was driving on an uncongested road. It was a narrow, high-crowned road with natural rock piled at its side to form a gutter. Plaintiff, Rosemarie Salemmo, was his only passenger. Suddenly the car swerved, collided with two trees and overturned. Defendant testified that his eyes left the road momentarily when he attempted to light a cigarette for
[ 192 Pa. Super. Page 54]
the plaintiff at her request. He 'assumed' that the wheel struck a rock at that time...
"Following the collision, plaintiff was found unconscious and bleeding from a two to two and a half inch long cut within the hair line. She regained consciousness fifteen minutes later, was taken to a hospital and given eight stitches in the wound under local anesthesia. A portion of plaintiff's hair was shaved for this purpose. Plaintiff also suffered simple, comminuted fractures of her right arm and leg for which they were put in plaster casts. Plaintiff remained hospitalized for eight days, during which time she suffered from headaches and dizziness. Four weeks after the accident the cast was removed from her arm. The cast was taken from her leg after five weeks. Pain and numbness occurred on leaving the hospital and substantially lessened over a period of several months. Plaintiff, a secretary, was unemployed for six weeks as a result of the collision and upon her return her duties were necessarily lighter".
The contention of the defendant on this appeal is that the evidence as to his negligence and plaintiff's contributory negligence was conflicting and not free from doubt, that the amount of the verdict was substantial, and that the court below abused its discretion in granting the new trial. The contention of plaintiff is that, not only was the court below warranted in granting a new trial, but also that the new trial should have been restricted to the issue of damages.
In an opinion filed this day in Simpkins v. Richey, 192 Pa. Superior Ct. 46, 159 A.2d 17, we reviewed the legal principles which apply in cases of this nature. The grant or refusal of a new trial because of inadequacy of the verdict is a matter peculiarly within the discretion of the trial court, ...