Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1962, No. 1472, in case of Anna Weiner, administratrix of the estate of Vincent Weiner, v. White Motor Company v. George B. Young Company.
William J. McKinley, Jr., with him Swartz, Campbell & Detweiler, for appellant.
James E. Beasley, with him Jeffrey M. Stopford, and Beasley, Hewson, Casey, Kraft & Colleran, for appellee.
Victor L. Drexel, for additional defendant.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Spaulding, J. Dissenting Opinion by Packel, J.
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Dissenting Opinion by Spaulding, J.:
I join in Judge Packel's dissenting opinion to the extent that he finds the jury's specific award of $35,000 for pain and suffering excessive under the circumstances of this case. I do not, however, feel that we should usurp the jury's function by arbitrarily setting the amount of such damages.
I would affirm the judgment of the court below with respect to the jury's award of damages of $345,000 in the wrongful death action and $60,000 in the survival action, but would reverse the specific award for pain and suffering and remand the case for a new trial limited to that issue.
Dissenting Opinion by Packel, J.:
I agree with the appellee's position that the court below did not err in permitting the submission to the jury of the defendant's liability under Section 402A of Restatement 2d, Torts. I do not agree with the appellee that we cannot review the issue of whether the award for pain and suffering was excessive. The appellant gave formal appeal notice of the issue that there should be no such award and, therefore, should not be precluded from raising the issue of its excessiveness, which was briefed and argued before us.
As a result of a sudden burst of fire in a relatively new truck, a rider jumped out of the truck as it was stopping. He rolled down a bank and then got up and
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ran around the back of the long truck and trailer. When he came to the front of the truck, he saw the driver lying on the ground. The driver's death was due to third degree burns over 80% of his body. On the basis of this circumstantial evidence that the driver suffered pain before his death, the jury made a specific award of $35,000 for pain and suffering. In addition, the jury awarded damages of $345,000 under the wrongful death action and $60,000 under the survival action.
Since the driver's body was outside the truck and there was no evidence of any explosion which could have thrown him there, it was reasonable for the jury to conclude that he did not die instantaneously. Although there is no measuring rod for pain and suffering, a significant factor is its duration. The facts in the record do not support a conclusion that the duration of the pain was more than for a very brief period, and in all probability for a period of less than a minute.
An appellate court will disturb a jury's verdict only when it is so grossly excessive as to shock the court's sense of justice. Connolly v. Phila. Transit Co., 420 Pa. 280, 216 A.2d 60 (1966). A determination of excessiveness in this type of case is particularly difficult. Not only is there the wide range which exists in trying to assess damages for pain and suffering, but there is also the intangible judicial issue of determining whether the award is so different from the range that it should be declared invalid. Each case, of course, must stand on ...