No. 1214 October Term, 1979, No. 1218 October Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Chester County, Nos. 220, 221 May Term, 1971 and No. 225 March Term, 1973.
Stephen H. Palmer, Media, for Sadsbury Township, appellant (at No. 1214) and appellee (at No. 1218).
Keith S. Erbstein, Philadelphia, for Dougherty, appellant (at No. 1218) and appellee (at No. 1214).
Robert S. Gawthrop, Jr., West Chester, for Devereux, appellee.
Thomas G. Gavin, West Chester, for Bair, appellee.
R. Stephen Shibla, Harrisburg, for Humphrey, appellee.
Price, Wieand and Hoffman, JJ.
[ 299 Pa. Super. Page 359]
In this action to recover damages for the death of a motorcycle passenger who was killed in a collision at a busy intersection, the jury absolved the drivers from liability and awarded damages against the policeman who had been directing traffic, as well as his employer, Sadsbury Township. The trial court found the damages inadequate and awarded a new trial limited to damages only. Appeals were filed by the plaintiff-administrator*fn1 and also by the defendant township. We affirm the grant of a new trial but modify the trial court's order by expanding it to award a new trial generally against all defendants.
"[T]o support the granting of a new trial for inadequacy, 'the injustice of the verdict should stand forth like a beacon.' So long as the verdict bears a reasonable resemblance to the damages proved, it is not the function of the court to substitute its judgment for that of the jury. Elza v. Chovan, [396 Pa. 112, 118, 152 A.2d 238, 240 (1959)]; Morris v. Peckyno, 202 Pa. Superior Ct. 490, 492, 198 A.2d 396 (1964). In the latter case, [the Superior Court,] quoting 15 Am.Jur., Damages, § 231, stated '"As a rule, a verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice,
[ 299 Pa. Super. Page 360]
partiality, or corruption, or that the jury disregarded the instructions of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or, according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff, or where the award is so inadequate that it should not be permitted to stand. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more."'" Rutter v. Morris, 212 Pa. Superior Ct. 466, 469-70, 243 A.2d 140, 142 (1968).
The grant of a new trial because of inadequacy of the verdict is a matter peculiarly within the competence of the trial court, and its discretion is considerable. Its action, therefore, will not be disturbed on appeal except where there has been a clear abuse of discretion. Wilson v. Nelson, 437 Pa. 254, 256, 258 A.2d 657, 658-59 (1969); Hose v. Hake, 412 Pa. 10, 14, 192 A.2d 339, 341 (1963); Elza v. Chovan, supra. However, appellate courts do ...