Bellettiere v. City of Philadelphia
| Decision Date | 27 June 1951 |
| Citation | 367 Pa. 638,81 A.2d 857 |
| Parties | BELLETTIERE et al. v. CITY OF PHILADELPHIA et al. Appeal of BELLETTIERE (four cases). |
| Court | Pennsylvania Supreme Court |
Marie Bellettiere, a minor, by her guardian, Felix Bellettiere, and Felix Bellettiere and Carmella Bellettiere, in their own right, brought action against the City of Philadelphia to recover for injuries sustained when automobile in which plaintiffs were riding was struck at intersection by a fire truck of the defendant, and Felix Bellettiere was made an additional defendant. The jury returned verdicts in favor of the plaintiffs, and the Court of Common Pleas No. 4 of the County of Philadelphia, as of March Term, 1949, No. 2814 Bluett, J., entered an order granting the motions of the defendant for a new trial, and the plaintiffs and additional defendant appealed. The Supreme Court, at Nos. 97, 99, 100 and 101, Horace Stern, J., held that the Court of Common Pleas acted within its discretion in awarding a new trial.
Order affirmed.
In action against city by driver and occupants of automobile for injuries sustained when automobile was struck at intersection by fire truck of city, court acted within its discretion in awarding new trial to the city.
I. Raymond Kremer, Max E. Cohen, Philadelphia, for defendant Felix Bellettiere, appellant in No. 97.
Edward M. Goldsborough, Joseph G. Feldman, Philadelphia, for appellants in Nos. 99, 100, 101.
James Francis Ryan, Harry Lapensohn, Assts. City Sols., Frank F Truscott, City Sol., Philadelphia, for City of Philadelphia.
Before STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
This is another in the ever lengthening line of cases in which we are asked to overrule the granting of a new trial.
In the evening of March 19, 1949 plaintiff Felix Bellettiere was operating his automobile northward on Fifth Street in Philadelphia; in the car with him were his wife, her father and mother, her sister, her brother, and two children. He testified that when he came to the house line of Morris Street he looked to the left for a distance of 250 feet and saw no vehicle coming toward him; when he reached the center of the intersection he noticed for the first time a fire truck of the City of Philadelphia approaching about 100 feet away and traveling at a speed which he estimated at 55 to 65 miles an hour. He thereupon attempted to increase his own speed but when his automobile reached the north curb line of Morris Street the front of the truck hit the left center of his car. He said that the truck had not blown a siren nor given any other warning of its approach and he did not see any blinker lights on it until it was ‘ coming into’ him. The other occupants of the car testified, in general, that no siren had been blown and that they did not see the fire truck or its flashing red light until immediately before the collision.
For the defendant, the City of Philadelphia, the driver of the truck testified that he was responding to a fire alarm and was proceeding eastwardly on Morris Street at a speed of 20 miles an hour with ‘ siren blowing, bells ringing revolving lights in working condition.’ When he arrived at the intersection of Fifth Street he reduced his speed to 10 miles an hour, and, looking to the right, he saw the Bellettiere car approaching from about 60 to 70 feet below Morris Street; he looked to the left and again to the right and then ‘ he was on top of me and that is when we collided.’ A lieutenant in the Fire Bureau who was seated on the right-hand side of the driver testified that from the time they left the fire house until the collision occurred he continuously sounded the siren and rang the bell. Four other firemen riding on the back of the truck also testified that as they traveled east on Morris Street the siren was blowing, the bell was ringing, and the rotary red light was flashing. A person asleep in his home a half block from the corner of Fifth and Morris Streets testified that he was awakened by the noise of the siren and the bell. Another person testified that he was in his house a half block from the intersection and he heard the siren and bell of the fire engine coming down the street. Another person testified that he was in his home about 75 feet from the corner and he heard the siren ‘ clanging * * * very loudly’ . Still another person, standing on the northeast corner of the intersection, testified that he saw the fire truck approaching at about 20 miles an hour, that it started to slow down and at that time he saw the automobile ‘ shoot out headed towards the north on Fifth Street’ ; his attention had been originally attracted by the siren and the bell.
The present suit was brought by Felix Bellettiere, his wife Carmella, and their child Marie by her father as guardian against the City; the latter brought in Felix Bellettiere as additional defendant in the Carmella and Marie actions. The jury found for the plaintiffs against the City, awarding damages to Felix Bellettiere in the sum of $4,800, to Carmella in the sum of $25,000, and to the child Marie in the sum of $200. The court refused the City's motions for judgment n.o.v. but granted its motions for a new trial. The plaintiffs, and Felix Bellettiere as additional defendant, appeal.
The court below filed an opinion in which, after summarizing the testimony on both sides, it stated that all the passengers in the car had brought suit against the City of Philadelphia and were therefore not disinterested witnesses, that the testimony given by those riding on the truck as to its speed and the sounding of the siren and bell and flashing of the red light was all positive evidence, that the court did not consider that there was enough evidence to establish recklessness on the part of the crew of the fire truck, that there was a question whether the verdicts were grossly excessive, and that, ‘ Under all the circumstances of the case, the court was of the opinion that there may have been prejudice in rendering the verdicts, and that in the interests of justice a new trial should be granted.’
In Class & Nachod Brewing Co. v. Giacobello, 277 Pa. 530, 121 A. 333, definite principles were formulated governing the scope of appellate review of an order granting a new trial; one of the rules there laid down, 277 Pa. at page 538, 121 A. at page 336, was that ‘ wherever the reason or reasons assigned involve the exercise of discretion, the order of the trial court will not be interfered with unless a palpable abuse of power appears.’ This statement, at least in substance, has been reiterated and applied in a great number of subsequent cases in this court.[1] We have also said that ‘ The presumption is that the trial court was justified in granting a new trial, even when the reason given therefor is an insufficient reason unless the court expressly states that it is the only reason.’ Bailey v. C. Lewis Lavine, Inc., 302 Pa. 273, 277, 153 A. 422, 423; Cuteri v. West Penn R. Co., 305 Pa. 347, 350, 157 A. 686, 687; Reese v. Pittsburgh Rys. Co., 336 Pa. 299, 301, 9 A.2d 394, 395; Samuels v. Johnson, 355 Pa. 624, 627, 50 A.2d 670, 672; Streilein v. Vogel, 363 Pa. 379, 386, 69 A.2d 97, 101; Foster v. Waybright, Pa., 80 A.2d 801. Also that ‘ An award of a retrial is an inherent power of the court of common pleas and entirely discretionary.’ Frank v. Bayuk, 322 Pa. 282, 283, 185 A. 705; Frank v. W. S. Losier & Co., 361 Pa. 272, 276, 64 A.2d 829, 831; Streilein v. Vogel, 363 Pa. 379, 385, 69 A.2d 97, 101. Also that ‘ One of the least assailable grounds for the exercise of such power [to grant a new trial] is the trial court's conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; especially in such a case is an appellate court reluctant to interfere.’ Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 276, 277, 64 A.2d 829, 831.
It is true that in Jones v. Williams, 358 Pa. 559, 58 A.2d 57, this court reversed an order granting a new trial where the plaintiff recovered a verdict against the original defendant but the jury exonerated the additional defendant and the trial court granted a new trial solely on the ground that the additional defendant should also have been found negligent; it was held that this action of the court constituted an abuse of discretion because the verdict was strictly in accord with the evidence. In Martin v Arnold, 366 A. 128, 77...
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