No. 23 W.D. Appeal Docket, 1984, Appeal from the Opinion and Order of the Superior Court of Pennsylvania entered on April 22, 1983 at No. 1024 Pittsburgh, 1981, Reversing the Judgment of the Court of Common Pleas of Erie County, Pennsylvania, at No. 3938-A-1978, Pa. Super. ;
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
Ferrick Excavating (hereinafter Ferrick) brought this action against Senger Trucking (hereinafter Senger) to recover for damage done to its 1974 Fiat-Allis Chalmers High Lift, while it was being transported on a truck owned and operated by Senger. A jury sitting in the Court of Common Pleas of Erie County returned a verdict for Ferrick in the amount of $30,500. Senger's post trial motion for a new trial was granted by the court en banc on the grounds that the verdict slip was irreconcilably inconsistent and that the court erred in not charging the jury on the law of gratuitous and mutual benefit bailment, but only on the law of ordinary negligence. Superior Court reversed the grant of a new trial, but ordered a remittitur of 20% of the verdict, holding as a matter of law that no bailment was created in this case, and therefore no instruction on bailment was required; and also that a verdict will be molded when the jury's intent is clear, as it was, according to Superior Court, in this case, but there was some confusion in the jury's filling out of forms.
This case arose when Ferrick called Senger to request that Senger assist Ferrick in moving its high loader from one part of Erie to another. Ferrick's truck, normally used for this purpose, was out of service at the time. Senger agreed to move the high loader for Ferrick, and sent its truck, operated by Senger's son, to the site where the high loader was located. Ferrick's employee drove the high loader onto the truck and both Ferrick and the younger Senger secured the high loader to the trailer of the truck. Ferrick's foreman then sent Ferrick's truck driver with young Senger to show him where the high loader should be delivered. Testimony conflicted as to whether Ferrick's driver, riding in the cab with Senger, gave Senger directions on how to go: Senger testified that Ferrick's man told him
to drive down State Street in Erie; Ferrick's employee testified that he did not give these directions, but told Senger to go by way of another route which would have avoided State Street. Senger went down State Street, and while passing under a railroad bridge which crossed overhead, damaged the high loader, which was slightly too high to clear the bridge.
The issues in the case are whether it was error not to have instructed the jury on the law of bailments and the degrees of care which are applicable to the various types of bailments, and whether it was error to order a remittitur.
Concerning the remittitur, the jury received special interrogatories, which they answered as follows:
Question No. 1: Do you find that the defendant, Senger Trucking Company, was negligent:
Question No. 2: If your answer to Question No. 1 was "Yes", was such negligence a proximate cause in bringing about Ferrick Excavating and Grading's damages?
Question No. 3: Was the plaintiff, Ferrick Excavating and Grading, contributorily negligent?
Question No. 4: If your answer to Question No. 3 was "Yes", was Ferrick Excavating and Grading's contributory negligence a proximate cause in bringing about Ferrick Excavating and Grading's damages:
Question No. 5: Taking the combined negligence that was a proximate cause in bringing about Ferrick Excavating and Grading's damages as 100%, what percentage of that negligence was attributable to the defendant, Senger Trucking Company, and what percentage was attributable to the plaintiff, Ferrick Excavating and Grading:
Percentage of negligence attrib- Percentage of ...