Trerotola v. City of Philadelphia

• Decision Date: 04 January 1943
• Docket Number: 250,249
• Citation: 346 Pa. 222,29 A.2d 788
• Parties: Trerotola v. Philadelphia et al., Appellants
• Court: Pennsylvania Supreme Court

29 A.2d 788

346 Pa. 222

Trerotola v. Philadelphia et al., Appellants

Nos. 249, 250

Supreme Court of Pennsylvania

January 4, 1943

Argued December 1, 1942.

Appeals, Nos. 249 and 250, Jan. T., 1942, andNo. 64, Jan T., 1943, from judgments of C.P. No. 7, Phila. Co., Dec. T.1940, No. 5228, in case of Carmino Trerotola and Rocco Trerotola, a minor, by Carmino Trerotola, his guardian, and Carmino Trerotola in his own right, v. City of Philadelphia and The Philadelphia Gas Works Company.Judgments affirmed.

Trespass for personal injuries and property damage.Before McDEVITT P.J.

Verdict for plaintiff in sum of $65,000 against defendant gas company, and in favor of defendant city and against plaintiff.Judgment caused to be entered on its verdict against plaintiff by defendant city.Rule by defendant gas company to strike off judgment entered by city made absolute; rules by plaintiff to file a motion for a new trial nunc pro tunc against the defendant city and to strike off the judgment made absolute.Motion by defendant gas company for a new trial denied upon plaintiff filing a remittitur of verdict in excess of $40,000.New trial ordered as to defendant city by court, of its own motion.Remittitur filed by plaintiff and judgment entered on verdict.Defendant gas company appealed from the refusal of a new trial; defendant city appealed from the granting of the new trial and from the striking off of its judgment.

The judgment of the court below in refusing a new trial to the Philadelphia Gas Works Company is affirmed.The judgment of the court below in striking off the judgment in favor of the City of Philadelphia and granting a new trial of the action against the City, is affirmed.

James Francis Ryan, with him John J. K. Caskie, Assistant City Solicitors, and Ernest Lowengrund, Acting City Solicitor, for appellant, Nos. 249 and 250.

Michael A. Foley, with him Ernest R. von Starck, Arthur Littleton and Morgan, Lewis & Bockius, for appellant, No. 64.

James F. Masterson, for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. JUSTICE MAXEY^[*]:

This is an appeal on the part of (1) the Philadelphia Gas Works Company from the refusal of the court below to grant it a new trial in a suit brought by Carmino Trerotola, individually and as guardian of Rocco Trerotola against the City of Philadelphia and The Philadelphia Gas Company, jointly for physical injuries and property damage suffered by the first named plaintiff and for physical injuries suffered by the last named plaintiff as a result of an explosion of illuminating gas in Greenwich Street, Philadelphia, on February 11, 1941.

Prior to the trial it was agreed by counsel for all parties in interest that the issue would be limited to the damages suffered by Carmino Trerotola in his own right, and that the injuries suffered by Rocco Trerotola would not be presented to the court at the trial.

The jury returned a verdict in favor of the plaintiff and against The Gas Company in the sum of $65,000, and in favor of the City of Philadelphia.On February 24, 1942, the defendantCity of Philadelphia entered judgment in its favor against the plaintiff on the verdict on February 10, 1942.Thereafter, on April 6, 1942, the defendantGas Company obtained a rule to show cause against the defendant City why the said judgment should not be stricken off, and on April 9, 1942, the plaintiff obtained a rule against the defendant City to show cause why the plaintiff should not file a motion for a new trial nunc pro tunc against the defendant City and, further, to show cause why the said judgment should not be stricken off.

Both of the foregoing rules to show cause were made absolute by the court below on July 14, 1942, and at the same time the court denied the defendantGas Company's motion for a new trial upon plaintiff's filing a remittitur of all the verdict in excess of $40,000.In addition, the court ordered, on its own motion, a new trial as to the defendantCity of Philadelphia.

On August 27, 1942, the plaintiff filed its remittitur of all the verdict in excess of $40,000., and caused judgment to be entered on the verdict, as thus remitted, on October 22, 1942.

In addition to appeal (1), supra, the defendantCity of Philadelphia has appealed from the granting of the new trial and from the striking off of its judgment.

In its opinion sur motion to strike off the judgment in favor of the City and for a new trial in respect to the City, the court below said: "This was done because of the opinion of the trial Judge, in which the other Judges of the court concurred, that there was ample evidence in the case to show that the water pipes had been negligently maintained by the City, causing leaks and consequent cavities about the water main and the gas main, so that if the action was at all maintainable the verdict rendered in favor of the City and charging the other defendant solely, was against the clear weight of the evidence.The defendants having been sued jointly, neither defendant could take any action which would prejudice the rights of the other; and while the motion for new trial filed by the Gas Works was pending and under consideration by the Court, it was not proper for the other defendant, the City of Philadelphia, to enter the judgment on the verdict in its favor.In this casethe plaintiff charged the defendants jointly.At the trial each defendant contended that the other was liable.The issue was one not only between the plaintiff and the defendants but also as between the defendants, so that if both were held liable the right of contribution could be enforced."

The facts in this case, in respect to the explosion and its causes, are identical with those in...