No. 165 Philadelphia, 1981, No. 276 Philadelphia, 1981, Appeals from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3061, January Term, 1978.
Richard A. Kraemer, Philadelphia, for appellant (at No. 165) and for appellee (at No. 276).
William C. McGovern, Philadelphia, for appellant (at No. 276) and for appellee (at No. 165).
Beck, Watkins and Hoffman, JJ.
[ 297 Pa. Super. Page 306]
Appellants contend that the lower court erred in granting appellee a new trial limited to damages. We agree and, accordingly, reverse the order of the lower court and reinstate the jury verdict.
Appellee brought this action against the manufacturer and the servicing company of an elevator, alleging that she had been injured when the elevator plummeted two floors and abruptly stopped, hurling her to its floor. Following a lengthy trial, the jury returned a $17,500 verdict against both appellants. Appellee filed post-trial motions alleging, inter alia, that the jury award was inadequate and that the lower court had prejudicially charged the jury. The lower court agreed and granted appellee a new trial on damages only. This appeal followed.
Appellants contend that the lower court erred in granting a new trial because appellee had waived her objection to the court's purportedly improper remarks. Appellee contends, however, that she indeed had preserved her objection. We disagree. At the close of its charge, the lower court stated:
You've had an opportunity to see [appellee]. You've seen her walking around the room here. You've seen her sitting here. And I'm sure that you'll have the opportunity to consider all of these factors in your determination and your verdict.
(N.T. Vol. V. at 681-82.) After the jury retired to deliberate, the following colloquy occurred:
[Appellee's counsel]: Your Honor, may I have an exception to your last portion of your charge?
The Court: All right, you may have an exception.
[Appellee's counsel]: I'm talking as to the failure to ...