Sternberg v. Dixon

• Decision Date: 02 July 1963
• Citation: Sternberg v. Dixon, 192 A.2d 359, 411 Pa. 543 (Pa. 1963)
• Parties: Jacob J. STERNBERG and Alyse Sternberg, Appellees, v. Andrew DIXON and Martin Kesselman, Additional Defendant and Jacob J. Sternberg, Additional Defendant, Appellants. Appeal of Martin KESSELMAN.
• Court: Pennsylvania Supreme Court

192 A.2d 359

411 Pa. 543

Jacob J. STERNBERG and Alyse Sternberg, Appellees, v. Andrew DIXON and Martin Kesselman, Additional Defendant and Jacob J. Sternberg, Additional Defendant, Appellants. Appeal of Martin KESSELMAN.

Supreme Court of Pennsylvania.

July 2, 1963.

George J. Lavin, Jr., Philadelphia, for appellants.

Albert H. Friedman, Norman Paul Harvey, Philadelphia, for appellees.

Before BELL C. J., and MUSMANNO, JONES, COHEN, KEIM, EAGEN and O'BRIEN, JJ.

O'BRIEN Justice.

This is an appeal by the additional defendants from the order of the court below granting a new trial to plaintiff Alyse Sternberg, after a jury verdict in her favor for $10,000.00 against the original defendant, Andrew Dixon only.

Jacob J Sternberg and his wife, Alyse Sternberg, were passengers in an automobile owned by Mr. Sternberg and operated by Martin Kesselman, the son-in-law of Mr. and Mrs. Sternberg. The Sternberg automobile, westbound on Sansom Street, in Philadelphia, about 4:30 p. m. on June 2, 1957 was struck, in the left rear side as it was clearing the intersection, by an automobile driven by Andrew Dixon, which was proceeding northbound on 16th Street.

Mr. and Mrs. Sterngerg sued Andrew Dixon in trespass for personal injuries and property damage. The plaintiffs' actions were severed and Martin Kesselman and Jacob J. Sternberg were joined as additional defendants in the action by Mrs. Sternberg. The jury returned verdicts in favor of Jacob J. Sternberg in the amount of $5,000.00 and in favor of Alyse Sternberg in the amount of $10,000.00 against Andrew Dixon only. Mrs. Sternberg moved for a new trial which was granted. The additional defendants, Mr. Kesselman and Mr. Sternberg appealed.

The scope of our review is well established in reviewing the grant of a new trial. In F. C. Haab Co., Inc. v. Peltz Street Terminal Inc., 407 Pa. 276, at page 278, 180 A.2d 35, at page 36 (1962) we said:

'This principle was most recently enunciated by Mr. Chief Justice Bell in Bohner v. Eastern Express, Inc., 405 Pa. 463, 472, 175 A.2d 864, 869 (1961) wherein he quoted the language of Segriff v. Johnston, 402 Pa. 109, 114, 166 A.2d 496, 499 (1960) as follows: 'We will not reverse the grant of a new trial unless (1) there was a clear abuse of discretion or (2) an error of law which controlled the outcome of the case, * * * [citing numerous recent cases].''

The trial judge in the opinion granting a new trial said:

'The court has carefully examined all of the testimony relative to the issue of negligence, particularly the testimony of additional defendant Kesselman which plaintiff contends establishes negligence on his part, and we must conclude that a positive case of negligence on Kesselman's part is not so evident as to rule that as a matter of law the jury erred by not finding against Kesselman as well as against Dixon. Accordingly, the issue of negligence in this case presented a question for the jury and was not such as could be ruled upon as a matter of law by the court. Enfield v. Stout, 400 Pa. 6, 12 (1960); Gross v. Smith, 388 Pa. 92, 95-98 [130 A.2d 90] (1957); Rasmussen v. Dresnin, 382 Pa. 51, 53-56 [114 A.2d 182] (1955).'

The court, after discussing the relevant testimony pertaining to the injuries sustained by Mrs. Sternberg and the seriousness and permanency of the injuries said:

'Therefore, this court must conclude upon a careful study of this record that the amount of the verdict awarded to plaintiff Alyse Sternberg is inadequate to fairly and justly compensate her for the multiple injuries, losses, disability, disfigurement and pain, suffering and inconvenience caused by this accident. See, Greco v. 7-Up Bottling Company of Pittsburgh, 401 Pa. 434, 451-452 [165 A.2d 5] (1960); Todd v. Bercini, 371 Pa. 605, 607-608 [92 A.2d 538] (1952).

'Accordingly, plaintiff Alyse Sternberg's motion for a new trial is granted.'

Counsel for the parties asked the court for clarification of the opinion granting plaintiff's motion for a new trial as to the extent of the order of new trial. The court filed an 'Addendum to Opinion' in which the court said:

'Subsequently, counsel have requested an addendum thereto regarding which of the parties are affected by the granting of plaintiff's new trial motion.

'The new trial is granted as against the defendant and the additional defendants, named above. None of the various defendants is excepted by the court's ruling.

'In its opinion the court concluded that a new trial must be granted due to the inadequacy of the verdict. The court further concluded that the alleged negligence of additional defendant Martin Kesselman was a question for the jury and one which could not be ruled upon as a matter of law by the court, thereby denying plaintiff's reason for a new trial that the jury erred as a matter of law in this regards. However, the court did not rule as a matter of law that additional defendant Kesselman was not negligent as a matter of law by stating that the issue of his negligence was a question for the jury. To so interpret the opinion would be reading into it a conclusion not made therein.

'Accordingly, all parties will stand trial again and all issues as to liability and damages will be resubmitted to a new jury for determination.'

Mr Kesselman's testimony relevant to the collision was that as he approached the intersection of 16th Street with Sansom Street and he slowed the automobile and looked to his left, which would be south, the light controlling traffic at the intersection turned green for Sansom Street. He proceeded across 16th Street and observed two northbound cars on 16th...