493 A.2d 669 (Pa. 1985), Thompson v. City of Philadelphia

Citation:493 A.2d 669, 507 Pa. 592
Opinion Judge:Author: Mcdermott
Party Name:Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased, Appellee, v. CITY OF PHILADELPHIA, William Smith, Srein Furniture Carriers, Inc., & Commonwealth of Pennsylvania. Appeal of COMMONWEALTH of Pennsylvania. Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased, Appellee, v. CITY OF PHILADELPHIA,
Case Date:June 04, 1985
Court:Supreme Court of Pennsylvania
 
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Page 669

493 A.2d 669 (Pa. 1985)

507 Pa. 592

Joan G. THOMPSON, Administratrix of the Estate of Raymond D.

Thompson, Deceased, Appellee,

v.

CITY OF PHILADELPHIA, William Smith, Srein Furniture

Carriers, Inc., & Commonwealth of Pennsylvania.

Appeal of COMMONWEALTH of Pennsylvania.

Joan G. THOMPSON, Administratrix of the Estate of Raymond D.

Thompson, Deceased, Appellee,

v.

CITY OF PHILADELPHIA, William Smith, Srein Furniture

Carriers, Inc., & Commonwealth of Pennsylvania.

Appeal of CITY OF PHILADELPHIA.

Supreme Court of Pennsylvania.

June 4, 1985

Argued Oct. 24, 1984.

Page 670

[507 Pa. 595] Ronald Yen, Deputy Atty. Gen., Philadelphia, for the commonwealth.

Michael B. Tolcott, Marilyn Kutler, Asst. Cty. Solicitors, Philadelphia, for City of Philadelphia.

Richard L. Polin, Philadelphia, for Joan Thompson.

James M. Marsh, Philadelphia, for Wm. Smith & Srein Furn. Carriers.

Page 671

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

The issue before us is one of first impression. The question is whether and under what circumstances a trial court may order a new trial for the apportionment of damages under the doctrine of comparative negligence. 1

On September 28, 1976, William Smith drove a tractor trailer through a guardrail at the end of the Spring Garden [507 Pa. 596] Street exit ramp of the Schuylkill Expressway in Philadelphia, and plunged onto the Expressway's westbound lanes, crushing the vehicle of plaintiff's decedent. Plaintiff instituted negligence actions in the Court of Common Pleas of Philadelphia against Smith and his employer, Srein Furniture Carriers, Inc., the Commonwealth of Pennsylvania, and the City of Philadelphia, to recover under the wrongful death and survival statutes 2 for the death of her husband. These actions were consolidated and tried before a jury.

Plaintiff proceeded against Smith and Srein on the basis of Smith's negligent operation of the tractor trailer, and Srein's vicarious liability for Smith's negligence under the doctrine of respondeat superior. Plaintiff's theory of recovery against the Commonwealth was its failure to use reasonable care in the posting of signs on the Expressway, thereby causing Smith to be confused. As to the City, plaintiff's allegations of negligence focused on the inadequacy of visible signs on the ramp, and the City's failure to provide adequate guardrails and barriers at the end of the ramp.

During the trial, Smith and Srein settled with plaintiff for $400,000, but retained a right of contribution from the other defendants according to the jury's apportionment of liability. The jury awarded damages totaling $500,000, 3 assessing the negligence of the City as 35%, the Commonwealth as 35%, and Srein and Smith, employer and employee, as 30%.

After the verdict, and before argument on post-trial motions, the City and the Commonwealth settled with plaintiff for $32,500 each and were given a joint tort-feasor release from plaintiff. The release was expressly made [507 Pa. 597] subject to provisions of the Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S. § 8321 et seq. 4

The trial court denied the City's and the Commonwealth's motions for Judgment N.O.V. as well as the City's motions for a remittitur, reduction of the verdict, and motion to mold the verdict. However, the trial court did grant the City and the Commonwealth a new trial as to the comparative negligence of the defendants, stating that "the jury's apportionment of fault among the defendants is manifestly and palpably against the weight of the evidence." Slip op., 4180 C.P. Phila., March Term, 1977, at 7.

On appeal the Superior Court reversed and entered judgment upon the jury's verdict. Writing for the majority, Judge Hoffman

Page 672

determined that the trial court's order "exceeds the limited standards for the grant of a new trial because of the weight of the evidence." Thompson v. City of Philadelphia, 320 Pa.Super. 124, 133, 466 A.2d 1349, 1353 (1983).

Initially the Superior Court held, in effect, that the power to grant a new trial is as inherent in a trial court for the apportionment of liability as the power exists for all the traditional reasons for granting a new trial. We agree. There is no reason to believe that injustice cannot be perpetrated by a misapportionment of responsibility. A jury is no freer under comparative negligence to ignore the weight of evidence, misapply the law, or fail of justice by a manifestly unreasonable resolution of the evidence than they were under any previous doctrine.

However, in measuring whether a new trial ought to be granted, the Superior Court panel adopted the view that a grant is a most "unusual" judicial act and if there is "any credible evidence which under any reasonable view supports [507 Pa. 598] the jury's findings" the verdict should be sustained. At first blush that would sound as though the standards differ for a new trial to apportion liability than they do where liability itself is in question. We see no material difference; the standards are the same. A new trial should be ordered whenever the exercise of careful discretion sounds the presence of an injustice; and it was error in the present instance for the Superior Court to reverse the grant of a new trial.

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).

In Nehrebecki v. Mull, 412 Pa. 438, 194 A.2d 890 (1963), Mr. Justice Eagen, speaking for a unanimous court, not only defined the duty to grant a new trial, but delineated the duty of an appellate court to give the gravest consideration to the findings and reasons advanced by the trial judge.

We have repeatedly said that we will not reverse the grant of a new trial, unless there was a clear abuse of discretion, or an error of law which controlled the outcome of the case: Segriff v. Johnston, 402 Pa. 109, 166 A.2d 496 (1960); Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961); Feltovich v. Sharon, 409 Pa. 314, 186 A.2d 247 (1962).

[507 Pa. 599] As stated in Lenik Condemnation Case, 404 Pa. 257, 172 A.2d 316 (1961), at 259: "One of the least assailable reasons for granting a new trial is the lower court's conviction that the verdict was against the weight of the evidence and that new...

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