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HOLMES ET AL. v. WATERS (06/24/75)

decided: June 24, 1975.

HOLMES ET AL.
v.
WATERS, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1966, No. 937, in case of John Holmes and Ruby Holmes, parents and natural guardians of Natalie Simmons, a minor v. James Waters, Jr.

COUNSEL

Barry J. Goldstein, with him Malcolm M. Waldron, Jr., for appellant.

Ralph Schwartz, with him Schwartz and Cohen, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Price, J.

Author: Price

[ 235 Pa. Super. Page 181]

This case reaches us as an appeal by the defendant-appellant, James Waters, Jr., from an order awarding plaintiff-appellee, Natalie Simmons, a new trial limited to the issue of damages. The facts of the case are as follows:

On a sunny day in June, 1965, Peggy Holmes (at that time aged 12) and her step-sister, the appellee (at that

[ 235 Pa. Super. Page 182]

    time aged 6), were playing ball in the driveway of their aunt's house on 57th Street, between Market and Ludlow Streets, in Philadelphia. During the course of their play, the ball rolled out of the driveway, across the street and onto the opposite sidewalk. The appellee asked Peggy if she, the appellee, could retrieve the ball and, after looking in both directions, Peggy gave her permission to do so.

The testimony adduced at trial is in conflict as to the events that followed, but it is clear that on recrossing the street, the appellee was involved in a collision with the appellant's automobile causing serious injuries to her head, arm and leg. A panel of arbitrators awarded $6,000 to the appellee. The appellant's demand for a trial de novo before a jury resulted in a $1,000 verdict in favor of the appellee and a $1,000 verdict in favor of her parents and natural guardians in their own right. The appellee's motion for a new trial was granted, limited to the issue of damages. From this order, appellant appeals, arguing that the verdict of the jury was a compromise verdict and should be sustained or, in the alternative, if a new trial is to be granted, that it should not be limited to the issue of damages.

Normally, in reviewing an appeal from the grant of a new trial, an appellate court will reverse the lower court only where the trial court's action is a manifest abuse of discretion. Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 192 A.2d 689 (1963). This rule obtains because of the trial judge's superior opportunity to determine matters such as credibility, jury attentiveness, etc. In this case, however, the judge that granted the new trial was in no better position to review the evidence than we are, for he was not present in the courtroom.*fn1 Therefore, we do not feel compelled to defer to the trial judge's traditional discretion in these matters.

[ 235 Pa. Super. Page 183]

The evidence at trial was in total conflict on the issue of liability. Appellant testified that as he was driving along 57th Street at a speed of approximately 20 miles per hour, two girls darted out in front of his car only ten to fifteen feet in front of him. Seeing the first girl, he immediately slammed on his brakes and avoided hitting her, but after his car ...


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