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WALBERT v. FARINA. (11/15/62)

November 15, 1962

WALBERT, APPELLANT,
v.
FARINA.



Appeals, Nos. 290 and 291, Oct. T., 1962, from judgments of Court of Common Pleas of Berks County, May T., 1962, Nos. 155 and 156, in case of Estehr E. Walbert, administratrix of estate of Robert R. Walbert, deceased, v. Jerome Farina. Judgments affirmed.

COUNSEL

Charles H. Weidner, with him David J. Batdorf, and Stevens and Lee, for appellant.

George R. Eves, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 199 Pa. Super. Page 362]

OPINION BY ERVIN, J.

The plaintiff, Esther E. Walbert, as administratrix of the estate of her deceased husband, Robert R. Walbert, brought an action in trespass under the Survival and Wrognful Death Acts, against the defendant, Jerome Farina. The jury rendered verdicts for the plaintiff in the amounts of $1,500.00 in the survival action and $2,762.23 in the wrongful death action. The surviving spouse, Esther E. Walbert, was the only person entitled to recover damages in the wrongful death action. Plaintiff filed motions for a new trial limited to damages only or, in the alternative, to a new trial generally. Upon the dismissal of the motions and the

[ 199 Pa. Super. Page 363]

    entry of judgment on the verdicts, the plaintiff took these two appeals.

Appellant's position is that the jury found the appellee to be liable and that the amount of damages awarded to her was inadequate. It is settled law of this Commonwealth that "Where the evidence of negligence or contributory negligence, or both, is conflicting or not free from doubt, a trial judge has the power to uphold the time-honored right of a jury to render a compromise verdict, and to sustain a verdict which is substantial - ...." Karcesky v. Laria, 382 pa. 227, 114 A.2d 150; Padula v. Godshalk, 192 Pa. Superior Ct. 618, 623, 624, 161 A.2d 919.

The grant or refusal of a new trial for inadequacy of the verdict is a matter for the sound discretion of the trial court, whose action will not be reversed except for a clear abuse of discretion: Elza v. Chovan, 396 Pa. 112, 152 A.2d 238; Sherman v. Manufacturers L. & H. Co., 389 Pa. 61, 132 A.2d 255.

"The refusal of a new trial sought because of alleged inadequacy of the verdict is a matter peculiarly within the discretion of the trial court, and the appellate court will not reverse unless the verdict is so unreasonable as to bring conviction that it was influenced by partiality, passion, or prejudice, or by some misconception of the law or evidence in the case." Mohler v. Worley, 179 Pa. Superior Ct. 56, 116 A.2d 342. See also Krusinski v. Chioda, 186 Pa. Superior Ct. 419, 142 A.2d 780; Simpkins v. Richey, 192 Pa. Superior Ct. 46, 159 A.2d 17; Salemmo v. Dolan, 192 Pa. Superior Ct. 51, 159 A.2d 253.

With these principle of law in mind, let us consider the evidence which was produced in this case. On December 1, 1957, at about 4:15 a.m., the weather being clear and dry, the decedent, Robert R. Walbert, age 49, was involved in an automobile ...


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