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MARGARET C. MCGOWAN v. DEVONSHIRE HALL APARTMENTS (05/16/80)

filed: May 16, 1980.

MARGARET C. MCGOWAN
v.
DEVONSHIRE HALL APARTMENTS, JENKINS ELEVATOR & MACHINE CO. APPEAL OF DEVONSHIRE HALL APARTMENTS



No. 143 October Term, 1979, Appeal from the Judgments in the Court of Common Pleas of Delaware County, Civil Action--Law, at No. 8221-1973.

COUNSEL

George J. McConchie, Media, for appellant.

James F. Proud, Media, for Jenkins Elevator & Machine Co., appellee.

Price, Gates and Dowling, JJ.*fn*

Author: Price

[ 278 Pa. Super. Page 234]

Margaret C. McGowan instituted suit against appellant, Devonshire Hall Apartments, for injuries she sustained as a result of the malfunction of a self-service elevator in that apartment house, where she was a tenant. Appellant joined as an additional defendant the Jenkins Elevator & Machine Company, which had contracted to make inspections of and provide limited service to the elevator in the apartment building. A jury trial resulted in a verdict against appellant and exoneration of the elevator service company, Jenkins. Appellant's post-trial motions for a new trial were denied, and this appeal was taken seeking the grant of a new trial because the verdicts in favor of Mrs. McGowan and Jenkins were allegedly against the weight of the evidence and because of alleged errors in the reception of evidence and the charge to the jury. We find no merit in these contentions and affirm the order of the court of common pleas.

A trial judge may not grant a new trial on the ground that the verdict is against the weight of the evidence simply because he believes that the jury should have decided differently. He should reserve that relief for use only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and when it mandates that another opportunity be given to prevent a miscarriage of justice. Ditz v. Marshall, 259 Pa. Super. 31, 393 A.2d 701 (1978); Dixon v. Andrew Tile & Manufacturing Corp., 238 Pa. Super. 275, 357 A.2d 667 (1976). The grant or refusal of a new trial, therefore, is within the sound discretion of the trial judge, and on appeal the scope of review is limited to a determination of whether the trial court has committed a palpable abuse of discretion or a clear error of law. Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970); Palmer v. Brest, 254 Pa. Super. 532, 386 A.2d 77 (1978). In making this

[ 278 Pa. Super. Page 235]

    determination, our task is to consider all the evidence. Sindler v. Goldman, 256 Pa. Super. 417, 389 A.2d 1192 (1978); Hayter v. Sileo, 230 Pa. Super. 329, 326 A.2d 462 (1974).

With these tenets firmly in mind, we proceed to an examination of the evidence adduced at trial. Mrs. McGowan testified that the accident occurred sometime after 9:30 a. m. on February 1, 1973, as she was stepping into the elevator, which happened to be stopped at her floor. She opened the outside door of the elevator, holding it in her right hand, and pushed open the accordion-like metal gate. She then placed her left foot onto the floor of the elevator carriage. At this moment, as she was poised with one foot on the floor of the elevator and one foot on the floor of the corridor, with both doors to the elevator open, the elevator took a sudden leap upward throwing her backward to the floor of the corridor. Her testimony further revealed that she had encountered no previous difficulties in the operation of the elevator except that it frequently was not flush with the floor of the corridor.

Gedford Ward, the superintendent-janitor at the Devonshire Hall Apartments, testified that at about the time of the accident, two men from Jenkins were at the apartments to carry out their regular monthly inspection. One of these men, Roy Porta, returned from the second floor and told both his co-worker and Ward that a lady had fallen there and was lying on the floor and that the elevator carriage was about a foot and a half above the floor of the corridor. Ward further testified that only Jenkins repaired the elevator and that no repairs were made subsequent to the accident until 1976 when a new cable was installed. He stated that he had never received notice of any malfunctions of the elevator, either prior or subsequent to the accident, and that the elevator functioned properly for him within an hour or two of the incident.

Roy Porta was called as a witness and denied making any observation or statement about the elevator at the time of the accident; his only recollection was that he stated there was a lady upstairs who needed help. He claimed that

[ 278 Pa. Super. Page 236]

    during his inspection at around 10:00 a. m. or later that morning, the elevator operated normally.

Finally, Mr. James Creighton testified that he was also coincidentally on the premises to make one of the inspections mandated by statute.*fn1 Mr. Creighton was licensed by the Commonwealth to make these inspections and was employed by a subsidiary of the liability carrier for the Devonshire Hall Apartments to inspect elevators on premises insured by that carrier. His inspection was completed at least one-half hour before the accident and disclosed no defects. Mr. Creighton testified that he believed that it was impossible for an accident to occur as Mrs. McGowan testified because opening either of the doors to the elevator would break an electrical circuit preventing the elevator motor from running and leave engaged a spring operated brake holding the elevator. His inspection just prior to the accident revealed that the safety circuit and the brake mechanism were both functioning properly.

Viewing this evidence as a whole, we are immediately presented with two issues. The first is one of causation-did Mrs. McGowan sufficiently prove that the harm she suffered was due to the malfunctioning of the elevator. The jury obviously resolved this initial question in favor of Mrs. McGowan, and we find the record clearly supports this conclusion. Mrs. McGowan gave her version of the accident which was corroborated, in part, by the alleged statement made by Mr. Porta. Although Mr. Porta at trial denied making this statement, such conflicts in testimony are for the jury to resolve as the credibility of the witnesses is ...


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