Gagliano v. DITZLER

Superior Court of Pennsylvania

Gagliano v. DITZLER

247 A.2d 632, 213 Pa. Super. 238, 1968 Pa. Super. LEXIS 748

CourtSuperior Court of Pennsylvania

DecidedNovember 14, 1968

DocketAppeal, 249

StatusPublished

Cited by4 cases

This text of 247 A.2d 632 (Gagliano v. DITZLER) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gagliano v. DITZLER, 247 A.2d 632, 213 Pa. Super. 238, 1968 Pa. Super. LEXIS 748 (Pa. Ct. App. 1968).

Pincite

Opinions

Opinion by

Wright, P. J.,

On May 19, 1962, at about 10:15 P.M., on Stump Hall Road, Worcester Township, Montgomery County, an automobile owned and operated by Dr. Anthony C. Gagliano collided with a tractor and haywagon owned by Benjamin F. Hitchens, Jr., and operated by his employe, Richard Ditzler. Dr. Gagliano and, the passengers in his car (wife and four children) instituted a trespass action which ultimately resulted in a ver: diet for Dr. Gagliano in amount of |650.00, and for the five passengers in amount, of |170.00 each. All plaintiffs other than Dr. Gagliano accepted their verdicts. Dr. Gagliano filed a motion for a new trial on the ground that his verdict was against (a) the evidence (b) the weight of the evidence (c) the law and (d) the charge of the court. Although leave was requested to file additional reasons, no additional reasons were filed. The court en banc granted Dr. Gag-liano a new trial limited to the issue of damages. The defendants have appealed.

It was the theory of Dr. Gagliano that the tractor was occupying the center of the roadway, that he was [240]*240blinded by its headlights, and that the haywagon did not carry electric clearance lamps as required of trailers by Section 801 of The Vehicle Code (75 P.S. 801). It was defendants’ theory that the tractor-haywagon combination was on the right shoulder of the road and was actually stopped at the time of the collision. All parties agree that the left side of Dr. Gagliano’s car struck the left front corner of the haywagon. The defendants submitted a motion for binding instructions and points for charge which emphasized their contentions (a) that there was no negligence on their part and (b) that Dr. Gagliano was guilty of contributory negligence. These issues were submitted to the jury at considerable length in the charge of the trial judge, which covers over sixty pages in the voluminous record.

We deem it unnecessary to burden this opinion with a detailed recital of the testimony. The court en banc concluded that the jurors had failed to comprehend the extent and seriousness of Dr. Gagliano’s injuries, and that the amount of his verdict was grossly inadequate. Although some of us might not have arrived at such a result, we all agree that the matter was within the discretion of the court below, and that the grant of a new trial was not an abuse of that discretion. Cf. Getts v. Balliet, 431 Pa. 441, 246 A. 2d 108.

The majority of the members of this court are firmly of the opinion, however, that the court below erred in limiting the new trial to the issue of damages. The power to grant limited new trials should be exercised cautiously: Rosen v. Slough, 212 Pa. Superior Ct. 398, 242 A. 2d 898. In the case at bar, the evidence on liability was conflicting, and that issue was hotly contested during the six-day trial. It is manifestly unfair on this record to afford Dr. Gagliano a second chance on the issue of damages without also affording [241]*241the defendants a second chance on the issue of liability. See dissent of the writer in Cason v. Smith, 188 Pa. Superior Ct. 376, 146 A. 2d 634, and the recent opinions of Judge Spaulding in Troncatti v. Smereczniak, 210 Pa. Superior Ct. 329, 231 A. 2d 886, and Rutter v. Morris, 212 Pa. Superior Ct. 466, 243 A. 2d 140. It is true that the Troncatti case was reversed by a majority of our Supreme Court¹ on the ground that the liability of the defendant had been fairly determined and defendant made no complaint in that regard. In the instant case, however, there was a serious question as to liability, that issue was vigorously disputed, and the record discloses substantial support for defendants’ position. The defendants should not be penalized because they were willing to pay the modest verdicts rather than to file post-trial motions. It is our view that a general new trial must be awarded.

The order of the court below is modified by striking out the limitation of the new trial, and as so modified is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion by

Wright, P. J.,

On May 19, 1962, at about 10:15 P.M., on Stump Hall Road, Worcester Township, Montgomery County, an automobile owned and operated by Dr. Anthony C. Gagliano collided with a tractor and haywagon owned by Benjamin F. Hitchens, Jr., and operated by his employe, Richard Ditzler. Dr. Gagliano and, the passengers in his car (wife and four children) instituted a trespass action which ultimately resulted in a ver: diet for Dr. Gagliano in amount of |650.00, and for the five passengers in amount, of |170.00 each. All plaintiffs other than Dr. Gagliano accepted their verdicts. Dr. Gagliano filed a motion for a new trial on the ground that his verdict was against (a) the evidence (b) the weight of the evidence (c) the law and (d) the charge of the court. Although leave was requested to file additional reasons, no additional reasons were filed. The court en banc granted Dr. Gag-liano a new trial limited to the issue of damages. The defendants have appealed.

It was the theory of Dr. Gagliano that the tractor was occupying the center of the roadway, that he was [240]*240blinded by its headlights, and that the haywagon did not carry electric clearance lamps as required of trailers by Section 801 of The Vehicle Code (75 P.S. 801). It was defendants’ theory that the tractor-haywagon combination was on the right shoulder of the road and was actually stopped at the time of the collision. All parties agree that the left side of Dr. Gagliano’s car struck the left front corner of the haywagon. The defendants submitted a motion for binding instructions and points for charge which emphasized their contentions (a) that there was no negligence on their part and (b) that Dr. Gagliano was guilty of contributory negligence. These issues were submitted to the jury at considerable length in the charge of the trial judge, which covers over sixty pages in the voluminous record.

We deem it unnecessary to burden this opinion with a detailed recital of the testimony. The court en banc concluded that the jurors had failed to comprehend the extent and seriousness of Dr. Gagliano’s injuries, and that the amount of his verdict was grossly inadequate. Although some of us might not have arrived at such a result, we all agree that the matter was within the discretion of the court below, and that the grant of a new trial was not an abuse of that discretion. Cf. Getts v. Balliet, 431 Pa. 441, 246 A. 2d 108.

The majority of the members of this court are firmly of the opinion, however, that the court below erred in limiting the new trial to the issue of damages. The power to grant limited new trials should be exercised cautiously: Rosen v. Slough, 212 Pa. Superior Ct. 398, 242 A. 2d 898. In the case at bar, the evidence on liability was conflicting, and that issue was hotly contested during the six-day trial. It is manifestly unfair on this record to afford Dr. Gagliano a second chance on the issue of damages without also affording [241]*241the defendants a second chance on the issue of liability. See dissent of the writer in Cason v. Smith, 188 Pa. Superior Ct. 376, 146 A. 2d 634, and the recent opinions of Judge Spaulding in Troncatti v. Smereczniak, 210 Pa. Superior Ct. 329, 231 A. 2d 886, and Rutter v. Morris, 212 Pa. Superior Ct. 466, 243 A. 2d 140. It is true that the Troncatti case was reversed by a majority of our Supreme Court¹ on the ground that the liability of the defendant had been fairly determined and defendant made no complaint in that regard. In the instant case, however, there was a serious question as to liability, that issue was vigorously disputed, and the record discloses substantial support for defendants’ position. The defendants should not be penalized because they were willing to pay the modest verdicts rather than to file post-trial motions. It is our view that a general new trial must be awarded.

The order of the court below is modified by striking out the limitation of the new trial, and as so modified is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

247 A.2d 632, 213 Pa. Super. 238, 1968 Pa. Super. LEXIS 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gagliano-v-ditzler-pasuperct-1968.

Opinions

Related

Cite This Page — Counsel Stack