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filed: December 14, 1987.


Appeal from Judgment of the Court of Common Pleas, Civil Division, of Northumberland County, No. CV-82-2209.


Thomas E. Boop, Sunbury, for appellant.

James R. Ronca, Harrisburg, for appellee.

Brosky, Wieand and Beck, JJ.

Author: Wieand

[ 369 Pa. Super. Page 56]

On December 22, 1980, at or about 6:40 p.m., Sidney L. Phillips was a passenger in a vehicle being operated by Richard Schoenberger in a southerly direction on Route 147, a two lane highway in Northumberland County. While attempting to pass a slow moving vehicle, Schoenberger collided with a vehicle travelling in the other direction and being operated by Ray Updegrove. To recover for the injuries which he sustained, Phillips commenced an action against Schoenberger, which was tried before a jury and resulted in a verdict in favor of Phillips and against Schoenberger in the amount of One Hundred Thousand ($100,000) Dollars. Post-trial motions were denied, delay damages

[ 369 Pa. Super. Page 57]

    were added, and judgment was entered accordingly. On appeal, Schoenberger raises numerous issues which we will discuss seriatim.

The grant of a new trial on the ground that the verdict was excessive and contrary to the weight of the evidence is proper only when the jury's verdict is so contrary to the weight of the evidence as to shock one's sense of justice and make a new trial imperative in order that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970); Bohner v. Stine, 316 Pa. Super. 426, 436, 463 A.2d 438, 443 (1983); Yandrich v. Radic, 291 Pa. Super. 75, 79, 435 A.2d 226, 228 (1981), appeal dismissed, 499 Pa. 271, 453 A.2d 304 (1982).

Assessing non-economic damages is primarily a matter for the jury, whose verdict will not ordinarily be set aside unless it is so excessive as to shock the conscience of the court. James v. Ferguson, 401 Pa. 92, 99, 162 A.2d 690, 694 (1960). The trial judge, who was present at the trial and heard the testimony, has broad discretion with respect to granting or refusing a new trial on the grounds that the verdict was contrary to the weight of the evidence; and his decision will not be reversed on appeal unless he has acted capriciously or has abused his discretion. Yandrich v. Radic, supra 291 Pa. Super. at 79, 435 A.2d at 229. A new trial should not ordinarily be granted where the evidence is conflicting and the jury could have decided for either party. Carroll v. Pittsburgh, 368 Pa. 436, 445-446, 84 A.2d 505, 509 (1951). In the instant case, the trial judge said that his conscience had not been shocked by the amount of damages awarded by the jury, and our review of the record does not suggest that this was an abuse of discretion.

The evidence established that Phillips had suffered multiple facial lacerations, a fractured nose, a torn lip and nostril, and a muscular ligamentous injury of the spine. The evidence also established that Phillips had spent several days in the hospital following the accident and had undergone several surgical procedures to minimize the scarring

[ 369 Pa. Super. Page 58]

    of his face. These efforts were not entirely successful, for Phillips continued at the time of trial to have permanent scarring on his face. He also continues to suffer chronic pain in his back and muscular spasms, as well as chronic headaches due to muscular contraction pain. Because of this, Phillips continues to be treated by physicians for injuries received in the accident.

In Daly v. John Wanamaker, Inc., 317 Pa. Super. 348, 464 A.2d 355 (1983), this Court said:

The trial court has the authority to order a remittitur of excessive damages. Ready v. Motor Sport, Inc., 201 Pa. Super. 528, 193 A.2d 766 (1963). However, the trial court should not interfere with functions of the jury and undertake to determine facts, which is exclusively the province of the jury. When it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the trial court should set aside or reduce the verdict. Jones v. Stiffler, 137 Pa. Super. 133, 8 A.2d 455 (1939). Conversely, if the verdict is supported by evidence, it must be permitted to stand where there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption. Stoughton v. Kinzey, 299 Pa. Super. 499, 445 A.2d 1240 (1982). Therefore, it is the duty of the court to enforce the jury's verdict unless the circumstances cry out for judicial interference. Prather v. H.K. Corp., 282 Pa. Super. 556, 423 A.2d 385 (1980); Stoughton, supra.

Id., 317 Pa. Superior Ct. at 352, 464 A.2d at 357-358 (emphasis in original). The circumstances in the instant case do not "cry out for judicial intervention." The verdict was fully supported by competent evidence, and the verdict was not excessive. It cannot be said that the trial court abused its discretion by refusing to grant either a new trial or a remittitur.

Appellant argues that the trial court erred when it refused to grant a mistrial after Ray Updegrove, in response to a question regarding the damages to his car, said, "Oh, the ...

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