Appeal from order of Court of Common Pleas of Northampton County, May T., 1965, No. 171, in case of Albert F. Getz, administrator of estate of Paul L. Getz, deceased v. Paul E. Balliet and Phyllis R. Balliet, his wife.
Morris Mindlin, with him Jackson M. Sigmon, and Mindlin, Sigmon, Briody & Littner, for appellants.
E. Jerome Brose, with him Brose, Poswistilo & LaBarr, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result.
Paul L. Getz, sixteen years of age, met his death as the result of an accident while employed as a casual laborer on a farm owned by the husband and wife defendants. Alleging the accident was caused by the negligence of the defendants, this suit in trespass followed seeking damages in a wrongful death and survival action. At the trial, the jury returned a verdict for the defendants. Subsequently, the court en banc unanimously granted a new trial. From this order, the defendants appeal.
Two reasons were cited below in support of the order granting a new trial: (1) The verdict was patently against the weight of the evidence; (2) The trial judge should have ruled that the doctrine of exclusive control applied to the facts. We affirm the grant of a new trial for the first reason only.
In granting the new trial, the court below stated, inter alia: "On the record before us we are firmly of the opinion that the exoneration of defendant by the jury was in mistaken or capricious disregard to the facts of the case and resulted in a miscarriage of justice." It further stated: "We are equally shocked at the result of the trial. We are convinced that the verdict will result in a miscarriage of justice and is unconscionable." In Clewell v. Pummer, 388 Pa. 592, 598, 131 A.2d 375 (1957), this Court stated: "Where a trial Judge or Court sees and hears the witnesses, it has not only an inherent fundamental and salutory power, but it is its duty, to grant a new trial when it believes the verdict was capricious or was against the weight of the evidence and resulted in a miscarriage of justice: [citing cases]. In such a case we will not reverse, unless there is a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial: [citing cases]." See also, Izzi Page 444} v. Phila. Transportation Co., 412 Pa. 559, 195 A.2d 784 (1963); Wylie v. Powaski, 422 Pa. 285, 220 A.2d 842 (1966). Our review of the instant record discloses no such abuse of discretion.
This is a summary of the pertinent facts.
At the time of the accident, the husband-defendant, Paul E. Balliet, was attempting to disengage a tractor from a rotary cutter used to cut straw stubble and grass on the farm. The cutter was attached to the tractor by two horizontal bars. The motor of the tractor provided the motive power for the tractor, as well as for the blades of the cutter, but by independent mechanical means within and upon the tractor. In other words, the tractor could be moved with the attached cutter not in operation. The transmission of power from the tractor to the cutter was activated by a vertical stick-type lever within reach of the tractor driver's seat. The power was transmitted from the tractor to the blades of the cutter through a shaft protruding from the tractor which was connected to a shaft protruding from the cutter. At the connecting end of both shafts, there was a universal joint which was covered by a shield weighing approximately five pounds secured by a collar. When power was transmitted from the tractor to the cutter, the shafts, as well as the shield, rotated. In order to disconnect the shafts, it was necessary to slide back this shield.
On the occasion involved, the husband-defendant found his efforts to manually move this shield and thus disconnect the shafts were unavailing. He then decided to mount the tractor and pull it from the cutter by moving the tractor forward through its motive power. As the tractor moved, the shield, described before, suddenly broke from its fixed position, propelled upwards through the air ...