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CHARLES E. CROMLEY v. MICHAEL J. GARDNER (04/13/78)

decided: April 13, 1978.

CHARLES E. CROMLEY, ADMINISTRATOR OF THE ESTATE OF CARL E. CROMLEY, DECEASED, APPELLANT,
v.
MICHAEL J. GARDNER



COUNSEL

John P. Campana, Williamsport, for appellant.

John Arnold Crisman, Berwick, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Jacobs, President Judge, dissents. Watkins, former President Judge, did not participate in the consideration of or decision of this case.

Author: Price

[ 253 Pa. Super. Page 469]

This is an appeal from the lower court's refusal to grant a new trial due to inadequacy of the verdict and trial errors in a wrongful death and survival action. We hold the lower court's order to be error and grant a new trial.

Appellant's first contention is that the lower court erred in refusing to grant a new trial based upon inadequacy of the verdict. The facts presented to the jury were the following. On November 4, 1972, just after midnight, the decedent, Carl E. Cromley, age twenty, was riding his bicycle south on Route 42 in Hemlock Township, Columbia County. Michael J. Gardner was proceeding in the same direction in his Volkswagon sedan. At the time that appellee first observed him, Mr. Cromley was on the berm of the highway. Appellee testified that he looked away from the bicycle to gauge his position relative to the highway's center line. When appellee looked back at the bicycle it was directly in front of him. Unable to stop his vehicle, appellee, the only eyewitness to the accident, struck Mr. Cromley, fatally injuring him. Appellee testified that the bicycle was equipped with a reflector, but no lights. Appellee also contended that the accident could not have been avoided because when appellee looked back to the bicycle, decedent was bicycling directly in front of him.

Testimony relevant to the damages issue revealed that decedent earned $69.00 a week with average maintenance costs of $37.00 to $40.00 per week. Decedent was a 1970 high school graduate who had been employed at fairs and carnivals as a concessionaire, at a lunch counter, and at the time of the accident, at a greenhouse. Life tables estimated a fifty year life expectancy for decedent. The jury returned a verdict of $1,591.80 in the death action and $3,568.00 in the survival action.

[ 253 Pa. Super. Page 470]

Although the distinction between an inadequate verdict and a compromise verdict is often difficult to make, Padula v. Godshalk, 192 Pa. Super. 618, 161 A.2d 919 (1960), the question of negligence as presented by these circumstances is certainly one which reasonably the jury may have compromised, and thus rendered this verdict which, on its face, seems rather low. We agree with the lower court that in all probability the jury result was a compromise, and as such is entitled to the recognition accorded such verdicts under the law of Pennsylvania.

We have said that "[w]here the evidence of negligence or contributory negligence is conflicting or not free from doubt, the trial court has the power to uphold the time-honored right of the jury to render a compromise verdict and to sustain a verdict which is substantial. [Citations omitted]." Simpkins v. Richey, 192 Pa. Super. 46, 49, 159 A.2d 17, 18 (1960). Therefore, we recognize that the lower court exercises considerable discretion in deciding whether a compromise verdict merits a new trial. However, "[w]e will reverse the lower court's discretion in granting or refusing a new trial where there was an error of law which controlled the outcome of the case. Izzi v. Philadelphia Transp. Co., 412 Pa. 559, 195 A.2d 784 (1963)." Boushell v. J. H. Beers, Inc., 215 Pa. Super. 439, 441, 258 A.2d 682, 684 (1969). We find that such an error was made in this case by the lower court's refusal to permit appellant to offer into evidence appellee's guilty plea to a charge of driving under the influence.

Appellee was charged with involuntary manslaughter and driving under the influence, neither of which is a summary offense. Appellee pled guilty to driving under the influence, and the involuntary manslaughter charge was dismissed. The lower court ruled on the basis of Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), that the plea was prompted solely by expedience and convenience, and was thus inadmissible.

In Hurtt v. Stirone, supra, the Pennsylvania Supreme Court faced the issue of whether ...


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