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BURRELL v. PHILADELPHIA ELECTRIC COMPANY ET AL. (04/28/70)

decided: April 28, 1970.

BURRELL
v.
PHILADELPHIA ELECTRIC COMPANY ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Delaware County, March T., 1964, No. 2974, in case of Ricardo Andre Scott Burrell, a minor, by his guardian, Goldsmith Burrell et al. v. Philadelphia Electric Company et al.

COUNSEL

Edward F. Cantlin, with him Hinkson & Cantlin, for appellants.

Robert A. Wright, for appellees.

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

Author: Pomeroy

[ 438 Pa. Page 287]

This action in trespass arose out of a collision between a truck, owned by defendant Philadelphia Electric Company, and driven by defendant Everett K. Fowler, an employee of the Electric Company, and a bicycle upon which the minor plaintiff Ricardo Burrell was riding. Plaintiffs sought recovery for the minor plaintiff's personal injuries alleging that the injuries were caused by the negligence of defendant Fowler acting within the scope of his employment. A jury trial resulted in verdicts in favor of the defendants. The court en banc granted plaintiffs' motion for a new trial on the ground that the verdicts were against the weight of the evidence, and defendants now appeal from that order.

The issue at trial was whether the collision which caused minor plaintiff's injuries was the result of the negligence of defendant truck driver. The issue of contributory negligence was not submitted to the jury, the court not having charged on the subject and having refused appellants' requested instruction on the standard of care required of the minor plaintiff. Only three witnesses -- the minor plaintiff, a playmate of his who was eight years old at the time of the collision, and defendant truck driver -- had observed the collision; and their accounts of the events leading up to the accident differed markedly.

[ 438 Pa. Page 288]

According to the minor plaintiff, he had been pedalling his bicycle in a northerly direction on the eastern sidewalk of Lloyd Street in Chester, Pennsylvania, when his right foot slipped off the pedal. While he was looking down, trying to get his foot back on the pedal, his bicycle went down off the sidewalk and into the street. At the approximate midpoint of the street, he was struck by the left front fender or wheel of defendant's southbound truck. This account was corroborated by the only nonparty witness, the eight year old playmate who had at best only a partial recollection of the event.

According to defendant Fowler, the truck driver, he had been stopped for a traffic light one block north of the place where the collision occurred and was going no more than 8 to 10 miles per hour at the time of the accident. He further testified that he had observed the boy from the time he entered the street, about a block south of the point where the accident occurred; that he was riding in the street and not on the sidewalk; and that he had no apparent difficulty operating his bicycle. Fowler testified that the minor plaintiff was pedalling the bicycle in a standing position and, when the bicycle was approximately six feet in front of the truck and four feet to the side of it, swerved suddenly to the left and into the path of the truck; that he applied his brakes immediately when he saw the bicycle swerve and had stopped the truck within eight feet. A police officer who investigated the accident testified that, according to his recollection, the skid marks left by the truck were about three feet in length.

We have frequently set forth the standards governing the grant of a new trial on the ground that the verdict was against the weight of the evidence. "The grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony, but that discretion is not absolute; this Court will review the action of the court below and

[ 438 Pa. Page 289]

    will reverse if it determines that it acted capriciously or palpably abused its discretion." Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123 (1969), and cases there cited. "A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion: [citation omitted]. Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party." Carroll v. Pittsburgh, 368 Pa. 436, 445-6, 84 A.2d 505 (1951). A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is ...


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