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WILSON v. NELSON (11/11/69)

decided: November 11, 1969.

WILSON, APPELLANT,
v.
NELSON



Appeal from judgment of Court of Common Pleas of Washington County, Nov. T., 1964, No. 417, in case of Marie Wilson v. Earl Nelson et ux.

COUNSEL

Paul A. Simmons, with him Tempest & Simmons, for appellant.

Robert D. Beck, with him John W. Edwards, and Patrono, Ceisler and Edwards, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Concurring Opinion by Mr. Chief Justice Bell.

Author: Pomeroy

[ 437 Pa. Page 255]

On January 23, 1963 plaintiff-appellant Marie Wilson was injured when the automobile which she was driving was struck by a coal truck operated by Earl Nelson and owned by Carrie Nelson, his wife (appellees). Appellant thereafter brought an action in trespass against the Nelsons, seeking damages for personal injuries, for traumatic epilepsy allegedly caused by the accident, and for wages allegedly lost because of appellant's epileptic condition. At trial in the Court of Common Pleas, Washington County, the negligence of defendants was not contested; at issue were the nature and extent of plaintiff's injury and the amount of the damages attributable thereto. The jury returned a verdict of $22,000 in favor of the plaintiff.

Thereafter, the plaintiff and the defendants filed timely motions for a new trial. The defendants' motion was abandoned and is not now in issue. The plaintiff moved for a new trial on the issue of damages only,

[ 437 Pa. Page 256]

    asserting that the verdict was inadequate and that the trial court had erred when it required plaintiff's attorney to discontinue use of a chart on which he had computed the damages sought. Plaintiff's motion was denied, and judgment was entered on the verdict. This appeal followed.

It is well settled that a motion for new trial is addressed to the sound discretion of the trial court; the denial of such a motion will not be reversed absent a clear abuse of discretion or error of law. See Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969); Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); and Zeman v. Canonsburg Borough, 423 Pa. 450, 223 A.2d 728 (1966). Where a new trial motion is predicated on an allegedly inadequate verdict the issue is peculiarly within the competence of the trial court, and the discretion vested in that court is considerable. Because the power to grant a new trial on this ground is infrequently exercised, appellate courts will reverse such determinations only in the presence of a gross abuse of discretion. See Frontage, Inc. v. Allegheny County, 413 Pa. 31, 195 A.2d 515 (1963); Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959); and Paustenbaugh v. Ward Baking Company, 374 Pa. 418, 97 A.2d 816 (1953).

In the present case, appellant's first contention, viz., that the verdict was inadequate, rests on her assertion that she had proved out-of-pocket expenses of $26,170, required future drug expenses of $4,500, and a future loss of wages of $75,000, all of which were the result of the accident. Defendants concede that $1,325.65 medical special damages were proved. They further admit that plaintiff had a proved income of $1,060 in 1961, $1,025 in 1962, and that she claimed earnings of $100 per week for the first three weeks of 1963.

[ 437 Pa. Page 257]

Calculation of the proper damages in this case rests on a determination of whether appellant did suffer from traumatic epilepsy as a result of the accident, whether any such epileptic condition was the cause of her alleged inability to return to work after the accident, and what future wages were lost ...


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