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DAVID KLYMAN v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (08/10/84)

filed: August 10, 1984.

DAVID KLYMAN, APPELLANT,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



No. 544 Philadelphia, 1982, Appeal from the Judgment entered February 16, 1982, Court of Common Pleas, Philadelphia County, Civil Division, No. 647 November Term, 1975.

COUNSEL

George J. O'Neill, Philadelphia, for appellant.

Norman Hegge, Jr., Philadelphia, for appellee.

Spaeth, President Judge, and Cirillo and Johnson, JJ.

Author: Johnson

[ 331 Pa. Super. Page 174]

The original plaintiff in this case, David Klyman, brought an action in trespass against Southeastern Pennsylvania Transportation Authority (hereinafter SEPTA) for injuries sustained when, as a pedestrian, he was involved in a collision with a SEPTA bus. He died on January 10, 1980 of causes unrelated to this action and his wife, Esther Klyman, was substituted as plaintiff. On November 17, 1980 following a jury trial a verdict was returned for the Appellee, SEPTA.

Appellant seeks review of a February 3, 1982 order of the Court of Common Pleas of Philadelphia County which denied a motion for a new trial. Klyman argues that the verdict below was against the weight of the evidence and the trial court erred in refusing to permit an expert witness to testify. A decision by a trial judge not to grant a new trial can only be reversed under certain conditions. In Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970) Justice Eagen, speaking for the court, stated:

"We have said many times that the grant of a new trial lies within the inherent power of the trial court, and on appeal we will not interfere with the exercise thereof, unless there has been a clear abuse of discretion or an

[ 331 Pa. Super. Page 175]

    error of law which necessarily controlled the grant of the new trial."

440 Pa. at 411, 269 A.2d at 479 (citations omitted).

In reviewing a motion for new trial this court must consider all competent evidence and determine whether or not the verdict was against the clear weight of the evidence, or whether there was clear error of law or palpable abuse of discretion in the rulings of the trial court. Hayes Cr. Country Cl. v. Central Penn Quarry S. & C. Co., 407 Pa. 464, 181 A.2d 301 (1962); Baltimore v. Ohio R. Co. v. C.J. Langenfelder & Son, Inc., 222 Pa. Super. 138, 292 A.2d 415 (1972). Several important facts in the instant case are not in dispute. Appellant, David Klyman, walked into the right side of the SEPTA bus while crossing Market Street in Philadelphia. At the time of the collision the SEPTA bus had the green light and Appellant was crossing Market Street against a red light.

All the eyewitnesses who testified indicated that Appellant collided with the SEPTA bus at some point between the front passenger doors and the rear passenger door, even though the precise point of impact varied from witness to witness. The eyewitnesses also differed in their estimates of the speed of the SEPTA bus at the time of the collision. Rochelle Swartz, a passenger on the bus, testified that the bus was going the "slowest speed it could go and, continue moving" (Supp.R. at 8b) while Klaus C. Rohr, a pedestrian at the intersection, estimated the bus's speed at "between fifteen and twenty miles an hour." (R. at 153a). Additionally there was testimony from Police ...


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