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FRANK MACINA v. ROBERT MCADAMS (07/25/80)

filed: July 25, 1980.

FRANK MACINA
v.
ROBERT MCADAMS, APPELLANT



No. 1306 October Term 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Div., Civil Section, No. 4003 of December Term 1972.

COUNSEL

C. Dean Francis, Philadelphia, for appellant.

G. Taylor Tunstall, Philadelphia, for appellee.

Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., concurs in the result.

Author: Spaeth

[ 280 Pa. Super. Page 117]

This appeal arises from an order granting a new trial.

On December 31, 1970, at approximately 5:00 a. m. appellee was driving a milk truck on Roosevelt Boulevard in Philadelphia when he was hit from the rear by an automobile operated by appellant. Appellee subsequently instituted a trespass action alleging that appellant's negligence caused him to sustain back injuries. At trial appellant admitted that his negligence caused the accident, but claimed that appellee had suffered no injury. The jury returned a verdict in favor of appellant, and appellee filed a motion for judgment non obstante veredicto or a new trial. The lower court refused to order judgment n. o. v., but granted a new trial on the ground that the jury's verdict was contrary to the evidence.

Appellant argues that the lower court erred in granting a new trial because the causation of appellee's back injuries was an issue for the jury to determine. Specifically, he asserts that a jury question was raised by Dr. Bong Lee's testimony that he could not find any traces of traumatic injury to appellee's back when he examined appellee almost four years after the accident, and that he believed that any disability appellee was experiencing at that time was the result of a birth defect. Appellant also cites appellee's testimony regarding his employment. It appears that the accident did not cause appellee to miss work, and that for a year and a half after the accident, he continued to work as a milkman, lifting milk cartons weighing 50 to 60 pounds. It also appears that when appellee quit his job as a milkman, he became a general masonry and cement contractor, employment which also entailed manual labor. Appellant further asserts that appellee's credibility as a witness was undermined during cross-examination regarding the preparation of his income tax returns.

"It is the general rule that the granting or denying of a new trial is a decision within the sound discretion of the trial judge." Palmer v. Brest, 254 Pa. Super. 532, 536, 386 A.2d 77, 79 (1978). Thus,

[ 280 Pa. Super. Page 118]

"[o]ne who appeals from the grant of a new trial assumes a very heavy burden indeed. Before we will reverse, the appellant must be able to show that the trial court was guilty of a palpable abuse of discretion or acted on an erroneous rule of law which, in the circumstances, controlled the outcome of the case and is certified by the trial court as the sole reason for the granting of a new trial." Mohr v. Plotkin, 186 Pa. Super. 615, 617, 142 A.2d 414, 415 (1958), quoting Mozino v. Canuso, 384 Pa. 220, 223, 120 A.2d 300, 301 (1956).

See also Eisert v. Jones, 399 Pa. 204, 159 A.2d 723 (1960); Seidel v. Yeadon Borough, 191 Pa. Super. 45, 155 A.2d 370 (1959). However, a trial court

     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. Hilliard v. Anderson, 440 Pa. 625, 271 A.2d 227 (1970); Burrell v. Philadelphia Electric Company, [438 Pa. 286, 265 A.2d 516] supra; Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505 (1951). "A new trial should be awarded on the ground that the verdict is against the weight of the 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. Jones v. Williams, 358 Pa. 559, [564], 58 A.2d 57; Carroll v. Pittsburgh, supra, 368 Pa. at 447, 84 A.2d 505; Brown v. McLean Trucking Co., 434 Pa. 427, 429-30, 256 A.2d 606 (1969)." ...


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