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09/09/97 KATHLEEN CRAFT v. DAVID HETHERLY

September 9, 1997

KATHLEEN CRAFT, APPELLEE
v.
DAVID HETHERLY, EXECUTOR OF THE ESTATE OF WILLIAM P. OSWALD, DECEASED, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delware County, Civil Division at No. 94-7176.

Before: McEWEN, P.j., Popovich and Olszewski, JJ. Opinion BY Popovich, J. McEWEN, P.j. Concurs in the Result.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed September 9, 1997

This is an appeal from the order of the Court of Common Pleas of Delaware County which granted a new trial to appellee, Kathleen Craft. Herein, appellant, David Hetherly, Executor of the Estate of William P. Oswald, deceased, contends the jury's determination that Mr. Oswald's negligence was not a substantial factor in bringing about Ms. Craft's injuries was not against the weight of the evidence. However, upon review, we find that the lower court did not abuse its discretion in granting a new trial in this case.

In Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985), our Supreme Court, in a detailed analysis, set forth the scope and standard of review to be employed when reviewing a trial court's decision to grant a new trial, as follows:

This Court has repeatedly emphasized that it is not only a trial court's inherent fundamental and salutary power, but its duty to grant a new trial when it believes the verdict was against the weight of the evidence and resulted in a miscarriage of Justice. Burchard v. Seber, 417 Pa. 431, 438, 207 A.2d 896, 899 (1965); Frisina v. Stanley, 409 Pa. 5, 7, 185 A.2d 580, 581 (1962); Kiser v. Schlosser, 389 Pa. 131, 133, 132 A.2d 344, 345 (1957). Although a new trial should not be granted because of a mere conflict in testimony or because the trial Judge on the same facts would have arrived at a different Conclusion, a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of Justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Company, 438 Pa. 286, 265 A.2d 516 (1970).

To determine whether a trial court's decision constituted a palpable abuse of discretion, an appellate court must "examine the record and assess the weight of the evidence; not, however, as the trial Judge, to determine whether the preponderance of the evidence opposes the verdict, but rather to determine whether the court below in so finding plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury." Exner v. Gangewere, 397 Pa. 58, 60, 152 A.2d 458, 460 (1959). Where the record adequately supports the trial court, the trial court has acted within the limits of its judicial discretion.

Thompson, 493 A.2d at 672-73; Neison v. Hines, 539 Pa. 516, 653 A.2d 634, 636 (1995); Rozanc v. Urbany, 444 Pa. Super. 645, 649, 664 A.2d 619, 621 (1995).

With the foregoing scope and standard of review in mind, our review of the record reveals that on June 20, 1992, at approximately 6:30 p.m., appellee was travelling north in her automobile along Pennsylvania Route 352, when a vehicle operated by William Oswald was stopped in the south-bound lane of Route 352. Mr. Oswald was making a left turn onto Forest Lane when he observed appellee's vehicle approaching from a distance of forty to fifty feet. Appellee was travelling approximately 35 miles per hour when she first saw Mr. Oswald drive into her lane of traffic from a distance of forty to fifty feet.

Mr. Oswald then stopped his vehicle in the middle of the on-coming lane. At the time of impact, Mr. Oswald's car was partially in appellee's lane of traffic, i.e., across the double yellow line which divided the north-bound and south-bound lanes. Appellee testified that she braked immediately after seeing Mr. Oswald's car, but she could not stop or "get around him." The left front of appellee's vehicle struck the left front of Mr. Oswald's car.

Appellee sustained injuries as a result of the accident. At trial, there was no dispute that appellee was injured as a result of the accident. The expert testimony of Dr. Barry Burkhardt, D.O., and Dr. Karl Rosenfeld, M.D., differed only to the extent, severity and duration of her injuries.

In response to interrogatories, the jury concluded that Mr. Oswald was negligent when he crossed the center-line of the road and placed his vehicle in the path of appellee's on-coming car. The jury also determined that Mr. Oswald's negligence was not "a substantial factor in bringing about harm to" appellee. In accordance with the instructions on the verdict slip, the jury thereafter ceased answering the interrogatories and did not answer the questions concerning whether appellee was contributorily negligent or whether her contributory negligence was a substantial factor in causing her injuries. Judgment in favor of Mr. Oswald was then entered.

Subsequently, appellee filed a post-verdict motion for a new trial, wherein she alleged the verdict was against the weight of the evidence. The lower court agreed and granted a new trial. The lower court reasoned that the weight of the evidence clearly demonstrated that Mr. Oswald's negligence was a substantial factor harming appellee. The court based this Conclusion, in part, upon the medical evidence which unequivocally proved that appellee's injuries were a direct result of the accident. The court also noted that the jury's ...


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