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JACOB FIERMAN v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (05/02/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 2, 1980.

JACOB FIERMAN
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, APPELLANT

No. 842 October Term, 1979, Appeal from Order of Court of Common Pleas, Trial Division, Philadelphia County, dated April 11, 1979, at No. 3164, June Term, 1971, ordering a new trial limited solely to the issue of damages.

COUNSEL

Norman Hegge, Jr., Philadelphia, for appellant.

Eugene E. Kellis, Philadelphia, for appellee.

Hester, Montgomery and Cirillo,*fn* JJ.

Author: Montgomery

[ 277 Pa. Super. Page 254]

Appeal is taken from the order of the lower court in this trespass action granting a new trial limited solely to the issue of damages. The incident involved in this appeal was a rear end collision between plaintiff-appellee's automobile and defendant-appellant's trolley which occurred on June 25, 1969. This case was tried before a jury and on October 23, 1978, a verdict in favor of plaintiff was returned in the sum of $2,350 for past medical expenses only. On October 25, 1978, plaintiff moved for a new trial limited solely to the issue of damages, alleging that the verdict was inadequate and against the weight of the evidence, the law and the charge of the court. Following oral argument, plaintiff's motion was granted on April 11, 1979. Defendant has appealed requesting the original verdict be reinstated or in the alternative that a new trial be granted generally.

It is axiomatic, that, "the granting of a new trial based on the alleged inadequacy of the verdict is within the discretion of the trial court," and this court will not interfere absent a clear abuse of discretion. Boyd v. Hertz Corp., 219 Pa. Super. 488, 497, 281 A.2d 679, 684 (1971). Also see Austin v. Harnish, 227 Pa. Super. 199, 323 A.2d 871 (1974). However, it is equally clear that it is "the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by witnesses." Elza v. Chovan, 396 Pa. 112, 115, 152 A.2d 238, 240 (1959), as cited by Austin v. Harnish, supra.

"Where an apparently inadequate verdict is returned by a jury after both sides had presented credible, directly conflicting evidence with respect to negligence, contributory

[ 277 Pa. Super. Page 255]

    negligence, proximate causation, and the extent of injuries in a personal injury action, the granting of a new trial limited to the issue of damages is an abuse of discretion." Rhodes v. Hollender, 260 Pa. Super. 290, 293, 393 A.2d 1268, 1270 (1978) citing Gagliano v. Ditzler, 437 Pa. 230, 263 A.2d 319 (1970).

The court in Rhodes v. Hollender, went on to further state that a new trial limited to damages may only be granted when: (1) the issue of liability is not intertwined with the issue of damages and (2) the liability is not questioned or had not been fairly determined so that no substantial complaint can be made with respect thereto.

In the instant case, the issue of liability was vigorously contested. There was a great deal of conflicting testimony between the parties, and a certain amount of contradictory testimony rendered by the plaintiff himself.*fn1 The jury was presented with this inconsistent evidence, and the amount of its award of damages reflects a compromise verdict.*fn2

Compromise verdicts are both expected and allowed. We will not reverse a jury verdict on the grounds of inadequacy, where the verdict, ". . . was reached by the jury after an impartial charge and where there was a factual question as to what injuries were attributable to the accident and what injuries were pre-existing." Boyd v. Hertz, supra, 219 Pa. Super. at 498, 281 A.2d at 685.

It was the province of the jury below to resolve inconsistencies and contradictions, to disbelieve all or part of the testimony of the witnesses, and to thereafter compromise the verdict or establish an amount which it determined would justly compensate the plaintiff for his loss. See Rogers v. Hammett, 229 Pa. Super. 6, 323 A.2d 394 (1974).

[ 277 Pa. Super. Page 256]

Having found that the lower court abused its discretion by granting a new trial limited solely to the issue of damages, we will grant defendant-appellant's requested relief.


*fn* Honorable VINCENT A. CIRILLO of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.


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