Appeal from order of Superior Court, Oct. T., 1967, No. 821, affirming judgment of Court of Common Pleas of Huntingdon County, Dec. T., 1965, No. 31, in case of Robert Eugene Black v. Harrison L. Ritchey.
Newton C. Taylor, with him Taylor & Taylor, for appellant.
R. Merle Heffner, with him Samuel H. Stewart, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen dissents. Dissenting Opinion by Mr. Justice Musmanno.
We allowed an allocatur from the Order of the Superior Court, which affirmed the Judgment of the Court of Common Pleas which had denied plaintiff's motion for a new trial. Plaintiff contends that the jury's verdict was inadequate.
On December 20, 1963, at about 5:30 in the evening, plaintiff was standing on the paved portion of a 20-foot-wide rural public highway in Fulton County beside his automobile, which had been disabled by a flat left rear tire. The weather was cold and clear, it was dark, and there was snow along the sides of the road. Plaintiff's parked vehicle had its parking lights on. The evidence was conflicting in regard to where plaintiff had parked his automobile in order to fix the tire, and where he was standing when hit, and as to the negligence of each of the parties.
Summary of Plaintiff's Testimony
Prior to the accident, plaintiff had parked his car off the highway at a distance of about 100 feet from
the point of the collision. Plaintiff testified that upon his return from work he noticed that his left rear tire was going flat. He testified that the tire could not have been changed at the place where the car now was parked, so he began to drive to a service station. However, he quickly realized that the tire was completely flat, and he therefore pulled the car over to the right side of the road in order to fix the tire. Plaintiff admitted that he had a clear vision for 1,000 feet but did not see the defendant until defendant was a few feet away, at which time he saw a flash of light just before he was hit.
Plaintiff suffered severe injuries. According to his testimony, he suffered a head injury, a fractured pelvis, and a knee injury which might require further surgery. Plaintiff's medical expenses amounted to approximately $1,900, and he claimed he lost earnings in the amount of $932.64. The jury returned a verdict for plaintiff in the amount of $3,500.
Summary of Defendant's Testimony
The testimony by defendant and his witnesses was in sharp contrast and conflict with that of plaintiff. The Pennsylvania State Police officer who investigated the accident and examined the scene on the night of the accident testified that plaintiff's tire could have been changed at the point where plaintiff first found his automobile. Additionally, and in further contradiction of plaintiff, a police officer testified that plaintiff's car at the time of the accident was partly on the paved portion of the highway and that he (the officer) found it necessary to direct traffic around the vehicle until it was moved. Defendant testified that he saw plaintiff's car when he was about 200 feet away; that it was parked about a foot on the hardsurfaced
highway; that when he was about 20 feet away, plaintiff was down on his haunches on the highway; that plaintiff jumped up right in front of defendant's car and staggered into the side of the car, hitting the windshield and breaking a hole clear through it.
Our scope of review in deciding whether the lower Court should have granted a new trial on the ground that the verdict was inadequate is whether the lower Court committed a clear or gross abuse of discretion. Greco v. 7-Up Bottling Co. of Pgh., 401 Pa. 434, 165 A.2d 5, and cases cited therein; Carpenelli v. Scranton Bus Co., 350 Pa. 184, 38 A.2d 44; Nikisher v. Benninger, 377 Pa. 564, 105 A.2d 281; Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150; Takac v. Bamford, 370 Pa. 389, 88 A.2d 86.
In Carpenelli v. Scranton Bus Co., 350 Pa., supra, the Court well said (page 187): "When a court grants a new trial on the ground of inadequacy of the verdict an appellate court, in the absence of a gross abuse of discretion, will not interfere: Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295; Pretka v. Wilson, 325 Pa. 491, 190 A. 722. When a trial court refuses*fn* to grant relief against an ...