Appeal, No. 238, March T., 1960, from order of Court of Common Pleas of Washington County, Nov. T., 1959, No. 203, in case of Louis Baker v. Commonwealth of Pennsylvania, Department of Highways. Order affirmed.
John E. Costello, for appellant.
Howard F. Carson, Special Assistant Attorney General, with him Robert W. Cunliffe, Assistant Attorney General, John R. Rezzolla, Jr., Chief Counsel, and Anne X. Alpern, Attorney General, for Commonwealth, Department of Highways, appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN
This is an appeal from an order of the court below granting a new trial in a land damage case.
The Commonwealth of Pennsylvania, through its Department of Highways, condemned 3.097 acres of land owned by the plaintiff for purposes of widening and improving a public highway (conversion of a fourlane general access highway into a four-lane limited access highway). An additional one-fifth of an acre was severed and rendered useless to the plaintiff by the taking. The total acreage owned by the plaintiff at the time was approximately thirty-six acres of what originally had been a forty-three acre tract. Approximately four and one-half acres of this tract had previously been deeded to a son by the plaintiff. Before the taking, the land had a frontage of one hundred feet on the four-lane highway. However, a depression of eight to ten feet deep in the ground paralleling this frontage about twenty-five feet from the highway, plus the fact that a creek crossed this strip of land one hundred and fifty feet distant from the highway, made entrance to the highway over this frontage difficult.
This was circumvented by the use of a right-of-way reserved in the deed by the plaintiff to his son, mentioned above. After the taking, no frontage existed and access to the highway was only possible through the use of a ramp which increased traveling distance. There were fills and cuts, and the channel of the creek, referred to above, located on the portion of the land taken, was changed. The watering of beef-cattle at this creek was no longer possible. The changing of grade placed the dwelling house on plaintiff's land at a lower level than the road.
Viewers awarded the plaintiff damages in the sum of $12,500. The Commonwealth appealed. After trial in the common pleas court, the jury awarded the plaintiff the sum of $19,000. The court en banc, holding the award to be excessive and expressing the fear that an unjust result was caused by the influence on the jury of the incompetent testimony of one of plaintiff's expert witnesses, directed that the plaintiff file a remittitur for all sums in excess of $12,875 and, if not filed, an order granting a new trial would be entered. (While the printed record does not show the entry of an order for a new trial, we will treat the directive referred to as a final order). Charging that the lower court erroneously substituted its judgment for that of the jury, this appeal is prosecuted.
We find no abuse of discretion in the court's conclusion granting a new trial. To reverse such action, it must clearly appear that the court acted capriciously, arbitrarily, improvidently or palpably abused its discretion: Morris v. Commonwealth, 367 Pa. 410, 80 A.2d 762 (1951); Young v. Upper Yoder Twp. Sch. Dist., 383 Pa. 320, 118 A.2d 440 (1955); Beal v. Reading Co., 370 Pa. 45, 87 A.2d 214 (1952); ...