Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1965, No. 2796, in re The Baltimore and Ohio Railroad Company v. C. J. Langenfelder & Son, Inc.
George M. Weis, with him Weis & Weis, for appellant.
David J. Armstrong, with him Dickie, McCamey & Chilcote, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J.
[ 222 Pa. Super. Page 139]
This is an appeal from the judgment of the Court of Common Pleas, Civil Division, of Allegheny County, Pennsylvania, in an action of trespass in which the jury determined liability in favor of the plaintiff-appellee, The Baltimore and Ohio Railroad Company, and against the defendant-appellant, C. J. Langenfelder & Son, Inc., in the stipulated amount of One Hundred Thousand Dollars ($100,000.00); and from the denial of post-trial motions.
This action was brought by the railroad to recover damages sustained by the collapse of a tunnel. In order to permit the passage of modern railroad cars, it was decided to lower the floor of the tunnel. The tunnel in question was constructed over one hundred years ago, but had been in continuous use until the early 1960's. The railroad-plaintiff and the defendant-contractor entered into a contract which required the contractor to perform the task of lowering the floor of the tunnel in accordance with the detailed specifications prepared by the railroad's engineering staff.
On June 6, 1963, after the tunnel floor had been lowered and while the contractor's workmen were digging a ditch along one wall of the tunnel, a portion of the tunnel collapsed. The railroad contends that the collapse was due to the contractor's negligence. Damages were stipulated to be One Hundred Thousand
[ 222 Pa. Super. Page 140]
Dollars ($100,000.00) and the case was tried before a jury solely on the question of liability. The jury found for the plaintiff-railroad.
The contractor advances three reasons that it contends requires a new trial: (1) the verdict is against the weight of the evidence; (2) the opinion of Dr. Ackenheil, the expert witness, should not have been admitted into evidence and his testimony should have been stricken; (3) the entire general construction contract should not have been permitted to go out with the jury for its use in deliberation since it contained material which was highly prejudicial to the contractor.
The law is clear that the grant or refusal of a new trial is within the sound discretion of the trial court but that discretion is not absolute. Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969). In passing upon a motion for a new trial, it is necessary to consider the entire record and determine whether the verdict was arbitrary or capricious or that it was against the weight of the evidence, or whether there was clearly error of law or palpable abuse of discretion in the rulings of the court below. Hayes Creek Country Club, Inc. v. Central Penn Quarry S. & C. Co., 407 Pa. 464, 181 A.2d 301 (1962).
The contractor complains that the hypothetical question put to Dr. Ackenheil, the expert witness, as to causation contained assumptions not in evidence. The expert, of course, cannot base his opinion upon facts not known to him and not supported by the evidence. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968).
The court below discussed carefully and ably the testimony of this expert and explains the reasons for the admissions of the testimony as well as the exercise of his discretion in refusing a new trial on the ...