Appeal, No. 270, Jan. T., 1962, from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1957, No. 2425, in case of Jacob J. Sternberg and Alyse Sternberg v. Andrew Dixon, Martin Kesselman, and Jacob J. Sternberg. Order reversed in part and modified and affirmed in part.
George J. Lavin, Jr., for appellants.
Albert H. Friedman, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE O'BRIEN
This is an appeal by the additional defendants from the order of the court below granting a new trial to plaintiff Alyse Sternberg, after a jury verdict in her favor for $10,000 against the original defendant, Andrew Dixon only.
Jacob J. Sternberg and his wife, Alyse Sternberg, were passengers in an automobile owned by Mr. Sternberg and operated by Martin Kesselman, the son-in-law of Mr. and Mrs. Sternberg. The Sternberg automobile,
westbound on Sansom Street, in Philadelphia, about 4:30 p.m. on June 2, 1957, was struck, in the left rear side as it was clearing the intersection, by an automobile driven by Andrew Dixon, which was proceeding northbound on 16th Street.
Mr. and Mrs. Sternberg sued Andrew Dixon in trespass for personal injuries and property damage. The plaintiffs' actions were severed and Martin Kesselman and Jacob J. Sternberg were joined as additional defendants in the action by Mrs. Sternberg. The jury returned verdicts in favor of Jacob J. Sternberg in the amount of $5,000 and in favor of Aylse Sternberg in the amount of $10,000 against Andrew Dixon only. Mrs. Sternberg moved for a new trial which was granted. The additional defendants, Mr. Kesselman and Mr. Sternberg appealed.
The scope of our review is well established in reviewing the grant of a new trial. In F. C. Haab Co., Inc. v. Peltz Street Terminal Inc., 407 Pa. 276, 180 A.2d 35 (1962), page 278, we said: "This principle was most recently enunciated by Mr. Chief Justice BELL in Bohner v. Eastern Express, Inc., 405 Pa. 463, 472, 175 A.2d 864 (1961), wherein he quoted the language of Segriff v. Johnston, 402 Pa. 109, 114, 166 A.2d 496 (1960), as follows: 'We will not reverse the grant of a new trial unless (1) there was a clear abuse of discretion or (2) an error of law which controlled the outcome of the case, ... [citing numerous recent cases].'" The trial judge in the opinion granting a new trial said: "The court has carefully examined all of the testimony relative to the issue of negligence, particularly the testimony of additional defendant Kesselman which plaintiff contends establishes ...