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KENNEDY v. BANBURY EQUIPMENT CORPORATION (ET AL. (12/12/63)

December 12, 1963

KENNEDY, APPELLANT,
v.
BANBURY EQUIPMENT CORPORATION (ET AL., APPELLANT).



Appeals, Nos. 258 and 261, April T., 1963, from order and judgment of Court of Common Pleas of Allegheny County, July T., 1958, No. 2514, in cases of Delmont J. Kennedy, Jr. v. Banbury Equipment Corporation et al. Appeal of plaintiff dismissed; order affirmed in appeal of individual defendant.

COUNSEL

Charles F. Dean, for plaintiff.

Bliss R. Mentzer, with him Weis & Weis, for defendant, Wissel.

Donald W. Bebenek, with him Meyer, Darragh, Buckler, Bebenek & Eck, for defendant, Banbury.

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

Author: Montgomery

[ 202 Pa. Super. Page 243]

OPINION BY MONTGOMERY, J.

These appeals arise from an action in trespass for personal injuries resulting from an automobile accident that occurred on November 20, 1957, at or about 8:00 A.M. several miles east of the City of Pittsburgh on Route 22 near Rodi Road. The accident occurred when a Crosley car, which had been converted from a sedan to a truck, operated by William C. Wissel (Wissel) collided with the rear of an automobile operated by Delmont J. Kennedy, Jr. (Kennedy). In his complaint Kennedy averred that Wissel at the time of the accident either was acting in his own behalf or, in the alternative, was acting in behalf of his employer, Banbury Equipment Corporation (Banbury). After a jury trial, on October 8, 1962, a verdict was returned for Kennedy against both Wissel and Banbury in the

[ 202 Pa. Super. Page 244]

    amount of $110 with a verdict over in favor of Banbury against Wissel.

One appeal is of Wissel alone from the grant of a new trial, on motion by Kennedy, for the sole reason that the verdict was inadequate. The grant of a new trial because of inadequacy of the verdict is a matter peculiarly within the discretion of the trial court, and the appellate court will not interfere in the absence of a gross abuse of that discretion. Simpkins v. Richey, 192 Pa. Superior Ct. 46, 159, A.2d 17.

From our review of the evidence damages in this case, we conclude that the trial court's order was justified. Kennedy testified that he and a passenger, Mike Mavroudis, were thrown about in the car, which was pushed forward with such force that his car was severely damaged both in the front and in the rear by the accident. Kennedy was dazed but not unconscious at the time of the accident. Although he suffered bruises of his left shoulder, left arm, and left hip in the accident, later his complaints were confined to the cervical region of his back. Within two days of the accident Kennedy consulted his family physician, Dr. Samuel A. Steffler, who prescribed medicines and heat Treatments for the neck pains. In January of 1958, Kennedy consulted Dr. M. S. DeRoy, whose diagnosis was a sprain of the cervical region of the neck and the cervical dorsal spine, superimposed on a pre-existing osteoarthritis of the cervical spine, and who gave him seven neck stretching treatments and other physical therapy. Then Kennedy returned to the care of Dr. ...


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