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GAGLIANO v. DITZLER ET AL. (11/14/68)

decided: November 14, 1968.

GAGLIANO
v.
DITZLER ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Montgomery County, No. 63-3649, in case of Anthony C. Gagliano et al. v. Richard Ditzler et al.

COUNSEL

Anthony J. Giangiulio, with him William H. Pugh, IV, J. Peirce Anderson, and Bean, DeAngelis, Tredinnick and Giangiulio, for appellants.

Vincent Cirillo, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Wright, P. J. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissent.

Author: Wright

[ 213 Pa. Super. Page 239]

On May 19, 1962, at about 10:15 P.M., on Stump Hall Road, Worcester Township, Montgomery County, an automobile owned and operated by Dr. Anthony C. Gagliano collided with a tractor and haywagon owned by Benjamin F. Hitchens, Jr., and operated by his employe, Richard Ditzler. Dr. Gagliano and the passengers in his car (wife and four children) instituted a trespass action which ultimately resulted in a verdict for Dr. Gagliano in amount of $650.00, and for the five passengers in amount of $170.00 each. All plaintiffs other than Dr. Gagliano accepted their verdicts. Dr. Gagliano filed a motion for a new trial on the ground that his verdict was against (a) the evidence (b) the weight of the evidence (c) the law and (d) the charge of the court. Although leave was requested to file additional reasons, no additional reasons were filed. The court en banc granted Dr. Gagliano a new trial limited to the issue of damages. The defendants have appealed.

It was the theory of Dr. Gagliano that the tractor was occupying the center of the roadway, that he was

[ 213 Pa. Super. Page 240]

    blinded by its headlights, and that the haywagon did not carry electric clearance lamps as required of trailers by Section 801 of The Vehicle Code (75 P.S. 801). It was defendants' theory that the tractor-haywagon combination was on the right shoulder of the road and was actually stopped at the time of the collision. All parties agree that the left side of Dr. Gagliano's car struck the left front corner of the haywagon. The defendants submitted a motion for binding instructions and points for charge which emphasized their contentions (a) that there was no negligence on their part and (b) that Dr. Gagliano was guilty of contributory negligence. These issues were submitted to the jury at considerable length in the charge of the trial judge, which covers over sixty pages in the voluminous record.

We deem it unnecessary to burden this opinion with a detailed recital of the testimony. The court en banc concluded that the jurors had failed to comprehend the extent and seriousness of Dr. Gagliano's injuries, and that the amount of his verdict was grossly inadequate. Although some of us might not have arrived at such a result, we all agree that the matter was within the discretion of the court below, and that the grant of a new trial was not an abuse of that discretion. Cf. Getts v. Balliet, 431 Pa. 441, 246 A.2d 108.

The majority of the members of this court are firmly of the opinion, however, that the court below erred in limiting the new trial to the issue of damages. The power to grant limited new trials should be exercised cautiously: Rosen v. Slough, 212 Pa. Superior Ct. 398, 242 A.2d 898. In the case at bar, the evidence on liability was conflicting, and that issue was hotly contested during the six-day trial. It is manifestly unfair on this record to afford Dr. Gagliano a second chance on the issue of damages without also affording

[ 213 Pa. Super. Page 241]

    the defendants a second chance on the issue of liability. See dissent of the writer in Cason v. Smith, 188 Pa. Superior Ct. 376, 146 A.2d 634, and the recent opinions of Judge Spaulding in Troncatti v. Smereczniak, 210 Pa. Superior Ct. 329, 231 A.2d 886, and Rutter v. Morris, 212 Pa. Superior Ct. 466, 243 A.2d 140. It is true that the Troncatti case was reversed by a majority of our Supreme Court*fn1 on the ground that the liability of the defendant had been fairly determined and defendant made no complaint in that regard. In the instant case, however, there was a serious question as to liability, that issue was vigorously disputed, and the record discloses substantial support for defendants' position. ...


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