Appeals from judgments of Court of Common Pleas of Lancaster County, June T., 1964, No. 54, in case of Dallas E. Glass v. Clarence Freeman, Marie Freeman, R. A. Reinhold et al.
John I. Hartman, Jr., with him Windolph, Burkholder & Hartman, for appellants.
John R. Gibbel, with him J. Marlin Shreiner, and Zimmerman, Zimmerman, Myers & Gibbel, for appellant.
John Milton Ranck, with him Charles Foltz Herr, and Appel, Ranck, Herr & Appel, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen dissents in part and would enter judgment in favor of defendants, Clarence and Marie Freeman. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.
Dallas E. Glass instituted this action to recover damages for personal injuries allegedly caused by the negligence of the defendants, Clarence and Marie Freeman, Donald Bauman and R. A. Reinhold. At trial a compulsory non-suit was entered in favor of the defendant Reinhold.*fn1 As to the other defendants, the issue was submitted to the jury and a verdict resulted in favor of Glass in the amount of $17,894.83 against both the Freemans and Bauman. Glass filed a motion for a new trial, asserting that the verdict was inadequate. The Freemans filed a motion for judgment notwithstanding the verdict. Bauman filed a motion for judgment notwithstanding the verdict and/or a new trial. Subsequently, the court below overruled all motions and judgments were entered on the verdict. The Freemans and Bauman filed these appeals.
It should first be noted that, on appeal from the refusal of a motion for a new trial, this Court will reverse only if the lower court abused its discretion or committed an error of law which controlled the outcome
of the case. E.g., Cinciripini v. Harmony Short Line Motor Transportation Co., 416 Pa. 231, 205 A.2d 860 (1965) (per curiam); Kiser v. Schlosser, 389 Pa. 131, 132 A.2d 344 (1957). And on appeal from the denial of a motion for a judgment n.o.v., the evidence must be viewed in a light most favorable to the verdict winner. Evidence supporting the verdict is considered and the rest is rejected. Conflicts in testimony are resolved in favor of the verdict winner. E.g., Connolly v. Philadelphia Transportation Co., 420 Pa. 280, 216 A.2d 60 (1966); Szawlinsky v. Campbell, 402 Pa. 651, 168 A.2d 581 (1961); Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957).
The Freemans own and operate a tavern in Lancaster County. Adjacent to the tavern is a parking lot. On Saturday, October 19, 1963, the Freemans, their son-in-law, Donald Bauman, several other relatives and a few neighbors, including the plaintiff Glass who volunteered to help without compensation, were engaged in blacktopping this parking lot. The blacktop was delivered to the premises by truck, then spread with shovels and rakes and finally rolled by a nine hundred pound tractor with steel wheels.
The tractor, which had been borrowed from R. A. Reinhold, was being operated on the day of the accident by Donald Bauman. During the morning, he left the tractor at the bottom of the parking lot with its engine running while he went to the men's lavatory. While Bauman was away, his seven year old son Jimmy climbed aboard and began driving the tractor up the sloped parking area. When the father returned, he saw Jimmy on the tractor as it rolled backward down the slope toward a group of men which included the plaintiff.
Bauman ran to the tractor and tried to stop it by depressing the foot brake pedal with his hand while
running backwards. He shouted no warning to the endangered group of men who were then unloading a truck load of blacktop. The plaintiff was intent on shoveling blacktop to a raker and did not ...