Cason v. Smith

• Decision Date: 11 December 1958
• Parties: Leroy CASON, a minor, by his guardian, Annie Ruth Cason, and Annie Ruth Cason, parent, in her own right, v. James L. SMITH, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 634

146 A.2d 634

188 Pa.Super. 376

Leroy CASON, a minor, by his guardian, Annie Ruth Cason, and Annie Ruth Cason, parent, in her own right, v. James L. SMITH, Jr., Appellant.

Superior Court of Pennsylvania.

Dec. 11, 1958.

Application for Allocatur Denied Jan. 12, 1959.

J. Webster Jones, Philadelphia, for appellant.

Arnold M. Kessler, Bernstein & Bernstein, Philadelphia, for appellees.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

RHODES, President Judge.

Defendant in this trespass action appealed from the refusal of his motion for judgment n. o. v. and from the grant of a new trial as to the minor plaintiff limited to the amount of damages for pain, suffering, and disability.

Leroy Cason, three and a half years of age, was injured on April 19, 1952, when he was struck by the automobile owned and operated by defendant. He suffered a fracture of the right leg and other injuries. The action was instituted against defendant by the minor, by and through his mother and natural guardian, to recover for personal injuries, and by the mother, in her own right as parent, to recover for medical expenditures and for the loss of earnings and services of her son. The jury returned a verdict for the mother for $843.55, representing full reimbursement for medical expenses incurred on behalf of the minor, and a verdict for the minor plaintiff in the sum of $200 for pain, suffering, and disability. Defendant filed a motion for judgment n. o. v.; plaintiffs moved for a new trial on the ground that the verdict was inadequate. The court below refused the motion for judgment n. o. v. and granted a new trial 'limited to the issue of damages for pain and suffering to the minor plaintiff * * *.'

The evidence and inferences therefrom viewed in a light most favorable to the plaintiffs indicate the following facts which are to be considered on defendant's motion for judgment n. o. v. Leroy Cason together with his mother, Annie Ruth Cason, and a two-year-old cousin were passengers in an automobile which took them to the vicinity of the home of Mrs. Cason's grandmother, located at 3823 Aspen Street, Philadelphia. Aspen Street is a two-way street running east and west; it is paved with asphalt. The Cason car was stopped and parked on the south side of Aspen Street to discharge its passengers. The home of Mrs. Cason's grandmother is located on the north side of Aspen Street. Mrs. Cason alighted from the parked car and carried Leroy in her arms across the street; she left him in the doorway on the porch of her grandmother's home and told him to remain there. She then returned to the car on the south side of Aspen Street for the other child. As she walked toward the south side of Aspen Street she looked to her left, i. e., eastwardly, and saw an automobile at the intersection of Aspen Street and Thirty-eighth Street, approximately 186 feet away. When she was about to step on the curb she heard a scream and a screech of brakes. She turned and observed Leroy lying under defendant's car with his heels protruding from beneath the left side of the car which was pointed in a westerly direction. Leroy's head was between the right and left front wheels.

There was an eyewitness to the accident, Mrs. Maggie Grant, who lived at No. 3822 on the south side of Aspen Street across from the home of Mrs. Cason's grandmother. Mrs. Grant was seated at her second floor window when she saw Mrs. Cason place Leroy in the doorway at No. 3823 Aspen Street, and also saw Mrs. Cason returning to the south side of the street when Leroy started to follow her. When Leroy had walked to a point near the center of the street, Mrs. Grant heard the racing of defendant's motor and saw his car coming westwardly on Aspen Street. At this time defendant's car was at a point near a fire plug more than 57 feet from the place where Leroy was walking. Defendant continued westwardly and struck Leroy.

Defendant testified that he had turned onto Aspen Street from Thirty-eighth Street; that he had proceeded about halfway up the block when he heard a bump; that he stopped, got out and saw Leroy beneath the left-hand side of the car behind the front wheel. He admitted that his view of the street was unobstructed, and stated that he had been traveling about 10 or 15 miles an hour.

The evidence clearly sustains the finding of defendant's negligence. Defendant had an unobstructed view of the center of the street where the minor plaintiff, Leroy, was walking. The child was in the street and visible to defendant while defendant was 57 feet away. In fact, since the minor was walking across the street and had reached the center by the time defendant was 57 feet away, it would also appear that the child had been visible to defendant for a distance much greater than 57 feet. If, as defendant testified, he was traveling only 10 to 15 miles per hour, he had ample time to stop had he been properly observing conditions ahead. Where, as here, a collision between a vehicle and a pedestrian occurs between crossings, the driver of the vehicle is liable if it appears that the pedestrian was "on the cartway a sufficient length of time to be seen, the driver of the car being far enough away to bring his machine under control." McAvoy v. Kromer, 277 Pa. 196, 199, 120 A. 762, 763. See Purdy v. Hazeltine, 321 Pa. 459, 462, 184 A. 660. The evidence sufficiently indicates that defendant was inattentive to his duties; he obviously failed to observe what was before him as he proceeded down the street. The running down of a child on an unobstructed roadway in broad daylight is evidence of negligence where, as here, there is no evidence whatever that the child darted out in front of the moving vehicle. Fedorovich v. Glenn, 337 Pa. 60, 63, 9 A.2d 358.

Defendant's argument that the testimony of Mrs. Grant was contradicted by her own prior signed statement is of no moment to the present inquiry. The fact that Mrs. Grant may have given a prior signed statement to defendant's investigator which varied from her testimony was a matter solely affecting her credibility. Mrs. Grant explained that the prior signed statement was written and obtained by defendant's investigator at whose insistence she signed the statement despite protestations that it was untrue. She explained further that not only was the statement written by the investigator but he used his own language and phraseology, such as the term 'darted out.' The investigator was present in the court room but was not called to testify by defendant.

Defendant further argues that the fact that the child's right femur was fractured is indicative of the fact that the child was struck on his right side as he darted from the south side of Aspen Street to the north side and not as he walked from the north side of Aspen Street to the south, as testified to by the witnesses; this argument is without merit. The fact that the right femur was fractured does not conclusively indicate that the child was struck on his right side. From the description of the accident it is just as probable that the child was thrown to the ground and run over on his right side; he was found under the car after it stopped with only his feet projecting from behind the left front wheel. ¹ Defendant's motion for judgment n. o. v. was properly refused by the court below.

Defendant next objects to the grant of a new trial limited to the issue of damages for pain, suffering, and disability of the minor plaintiff. The verdict of the jury on the claim of Mrs. Cason in her own right as parent awarded the full amount of the medical expenditures incurred on behalf of the minor plaintiff. The award of $200 to the minor plaintiff in his action for his personal injuries, pain, suffering, and disability was obviously an inadequate verdict; defendant acknowledges that in view of the nature of the injuries the amount was insufficient. Defendant contends, however, that the verdict was a compromise verdict, and that it was thus improper for the court to eliminate the issue of negligence in the grant of a new trial.

Ordinarily the grant of a new trial means a new trial generally; it restores the case to the status it had before any trial took place, and it is fully open to be tried de novo as to all the parties and all the issues. Pennsylvania Co., for Insurances on Lives and Granting Annuities v. Lynch, 308 Pa. 23, 28, 162 A. 157; Iwankow v. Colonial Life Insurance Co. of America, 120 Pa.Super. 114, 120, 181 A. 870. On the other hand, under the decisions in this Commonwealth, where the circumstances warrant, a new trial may be partial, that is, as to less than all of the parties (Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 277, 64 A.2d 829; Ratcliff v. Myers, 382 Pa. 196, 202, 113 A.2d 558; Maloney v. Rodgers, 184 Pa.Super. 342, 350, 135 A.2d 88), or limited, that is, as to less than all of the issues. A retrial of the issue of damages without a retrial of the issue of liability is permissible. Baraonfski v. Malone, 371 Pa. 479, 483, 91 A.2d 908; Van Buren v. Eberhard, 377 Pa. 22, 34, 104 A.2d 98; Hanus v. K. M. B. Construction Co., Inc., 392 Pa. 307, 140 A.2d 454. ²

Obviously the court below had the authority to grant a partial and limited new trial because of the inadequacy of the verdict. See 39 Am.Jur., New Trial, § 24, pp. 47, 48; Annotation: 98 A.L.R. 941-953, 29 A.L.R. (2d) 1199-1223. The question before us is whether in doing so the court manifestly abused its discretion. Sherman v. Manufacturers Light and Heat Co., 389 Pa. 61, 68, 69, 132 A.2d 255; Krusinski v. Chioda, Pa., 145 A.2d 681; Murosky v. Spaulding, Pa.Super., 146 A.2d 339. Whether this Court, in the exercise of its broad statutory authority, should order a new trial generally as to all parties and on all issues is a question which should be approached with great caution. Esposito v. Henderson, 185 Pa.Super. 479, 485, 137 A.2d 900; 66 C.J.S. New Trial § 11(e), p. 92.

Usually the...