Zimmerman v. Pa. R. Co.

• Citation: 142 A. 220,293 Pa. 264
• Parties: ZIMMERMAN v. PENNSYLVANIA R. CO.
• Decision Date: 10 May 1928
• Court: United States State Supreme Court of Pennsylvania

142 A. 220
293 Pa. 264

ZIMMERMAN
v.
PENNSYLVANIA R. CO.

Supreme Court of Pennsylvania.

May 10, 1928.

Appeal from Court of Common Pleas, Northumberland County; Albert Lloyd, Judge.

Action by Howard Zimmerman against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant appeals, after the dismissal of a rule for new trial and the overruling of a motion for judgment n. o. v. Judgment reversed, and motion for judgment n. o. v. and order for new trial reinstated, with directions.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

C. M. Clement and J. Simpson Kline, both of Sunbury, for appellant.

Fred B. Moser, of Shamokin, for appellee.

PER CURIAM. In this action for personal injuries, plaintiff, by occupation an autotruck driver, recovered a $20,000 verdict, on which judgment was entered in his favor. Defendant has appealed.

Among other complaints, the verdict is attacked as excessive. This allegation was disposed of in a most general way by the court below, in an opinion written by the trial judge, dismissing a rule for a new trial and overruling a motion for judgment n. o. v.

It appears that, though the court below consists of two members, the trial judge alone heard argument on the above rule and motion. No reason appears why the other member of the bench failed to sit.

In Gail v. Philadelphia, 273 Pa. 275, 117 A. 69, plaintiff was awarded $19,325 for the permanent loss of part of the use of a leg; the verdict was set aside on appeal as exorbitant. We there said (page 279 [117 A. 70]). as to the duty of a court of first instance in dealing with such a verdict:

"The obligation to control [the amount of the verdict, when claimed to be excessive] is not limited to the trial judge, but extends to the court in banc, where the motion for a new trial is argued. It is the duty of all the judges so sitting, not only to hear, but subsequently to meet together, discuss and determine the matters presented before them, * * * and, where a majority feel convinced an exaggerated verdict has been rendered, the amount should be reduced by proper order, * * * or a new hearing awarded, even though the trial judge disagrees; otherwise, arguments before a court in banc are useless."

Later, in McOormick's Election Case, 281 Pa. 281, 285, 126 A. 568, 570, we said:

"Where a court is acting as a whole, or in banc, all the judges constituting the tribunal, or as many of them as may be available at the...