No. 170 APRIL TERM, 1978, Appeal from Order of the Court of Common Pleas of Somerset County at No. 70 Civil 1975.
J. Phillips Saylor, Johnstown, for appellant.
Frank A. Orban, Jr., Somerset, for appellee.
Jacobs, President Judge and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 263 Pa. Super. Page 278]
This case is in trespass. Plaintiff asks for damages for injuries he received in the collapse of a platform and steps outside the door of his sister's home. In a first trial the jury found for defendant, and the lower court en banc granted plaintiff's motion for new trial. In a second trial, a second jury found for the defendant. The court en banc again granted a new trial. Defendant has appealed to our court.
We reverse the lower court and order that judgment be entered on the verdict.
The appellate courts have consistently sustained the discretion of the trial court in granting new trials where a verdict seems clearly contrary to the weight of the evidence, but have reversed in many cases where it appeared that there had been an abuse of that discretion.
The applicable policy has been expressed recently in Dixon v. Andrew Tile and Manufacturing Corp., 238 Pa. Super. 275, 282, 357 A.2d 667, 670-71 (1976):
"the standard governing the grant of a new trial on the ground that the verdict is against the weight of the evidence is well-settled. 'The grant of a new trial lies 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 will reverse if it determines that it acted capriciously or palpably abused its discretion.' Burrell v. Philadelphia Electric Company, 438 Pa. 286, 288-289, 265 A.2d 516, 517 (1970). A lower court, however, may not grant a new trial merely because it believes that the jury should have decided differently. A new trial should not be granted on the ground that the verdict is against the weight of the evidence where the evidence is conflicting and the jury could have decided in favor of either party . . . 'A new trial should be awarded on the ground that the verdict is against the weight of the
[ 263 Pa. Super. Page 279]
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 imperative so that right may be given another opportunity to prevail . . .' Essentially, we must examine the trial court's grant of a new trial in the light of the seriousness of the jury's departure from the result which the trial court feels is dictated by the evidence. When the evidence is contradictory and the case close, the jury verdict must be given greater weight. See Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); Reese v. Hughes, 223 Pa. Super. 311, 299 A.2d 653 (1973)."
In this present case our review of the record indicates that there were weaknesses and contradictions in plaintiff's evidence which clearly support the verdict against him. On the day of the accident plaintiff was an invitee to his sister's home. He was a relatively frequent visitor, housed his car in the integral garage, normally used the interior stairs to the second floor where his sister lived, but on this day he used the outside stairs. He had previously owned the building, and had rented and then sold it to his sister, defendant herein, in March 1973. On July 2, 1973 his sister asked him to come to her home to discuss some personal matters. In May, 1973 there had been three days of unusually heavy rains, and defendant had asked him what to do about all the water coming down on her property. He suggested she call the Town Supervisors. She did. On the evening of July 2, plaintiff went up the outside steps of the ...