Karcesky v. Laria

114 A.2d 150, 382 Pa. 227, 1955 Pa. LEXIS 393

• Court: Supreme Court of Pennsylvania
• Decided: May 24, 1955
• Docket: Appeals, 153, 237 and 242
• Status: Published

Opinions

Opinion by

Mb. Justice Bell,

Plaintiffs motion for a new trial based upon the inadequacy of the verdict was refused by the Court below. Laria and Werner each moved for a judgment n.o.v. and each motion was refused by the Court below. These appeals followed.

Plaintiffs walked across Seventh Avenue in the middle of the block between 12th and 13th Streets in Beaver Falls, Pennsylvania, at approximately 7:15 o’clock P.M. on March 16, 1951. The street lights were on. Laria, the original defendant, was driving his car north on Seventh Avenue which is 66 feet in width •from curb line to curb line. The street is wide enough ior diagonal parking in addition to four marked lanes of traffic, lanes numbers 1 and 2 accommodating northbound traffic, and lanes numbers 3 and 4 accommodating southbound traffic. Laria was driving in lane number 2 on the left side of the northbound portion of the highway. Werner, the additional defendant, was driving south on Seventh Avenue following the automobile traffic in his left lane (lane number 3).

Plaintiffs walked out beyond the parked cars, looked to their left and saw Laria a block and a half away. Plaintiffs then walked to about the center of the street (Seventh Avenue) when they stopped to let southbound traffic (including Werner’s car) pass them. Plaintiffs then looked to their left and saw Laria’s car about a block away; they never saw it again 'until after the accident, and so far as the evidence showed, they never looked again to their left, whence Laria’s car was approaching.

Karcesky testified that after the line of cars in Werner’s lane had passed by, “I started to take a step across the [center] line, and that’s the last I knew.” Laria testified two people walked into the side of his car. The jury might well have found a verdict for defendants.

Werner

Karcesky testified several times that the southbound traffic (Werner’s) had passed by and cleared him and Ms wife “when I was starting to step across the center line.” “Q. And while you were standing there, did any car traveling south in lanes 3 or 4 strike you . . .? A. No, sir.”

Mrs. Karcesky testified she was struck by an automobile but did not know which automobile it was. Plaintiffs called Mrs. Werner as their own witness and called Mr. Werner as if under cross-examination. Both Mr. and Mrs. Werner testified that Mr. Werner did not hit the plaintiffs and their evidence corroborated plaintiffs’ evidence, viz., that Werner was free of any negligence. Since the testimony of Mr. and Mrs. Werner was not contradicted, plaintiffs are bound by it: Readshaw v. Montgomery, 313 Pa. 206, 169 A. 135.

Werner testified positively that he did not hit the plaintiffs and that he heard a screeching of brakes as Laria’s car was passing the plaintiffs. The only evidence to possibly connect Werner with plaintiffs’ injuries Avas his voluntary statement several hours later to the police that there was a brush mark on the side of his car.

The jury returned a verdict in favor of Mr. Karcesky in the sum of $3,000. and for Mrs. Karcesky in the sum of $2,000.; and the verdicts were against both defendants.

“The law is clearly settled; the difficulty arises in close cases such as this of applying the principles to the facts. Plaintiff must prove by a fair preponderance of the evidence that defendant was guilty of negligence and that defendant’s negligence was the proximate cause oí the accident.”: Fries v. Ritter, 381 Pa. 470, 112 A. 2d 189.

In Stauffer, Admr. v. Railway Express Agency, Inc., 355 Pa. 24, 47 A. 2d 817, the Court said (page 25): “. . . It is not enough to show merely that an accident occurred, or that it may have happened from any of several causes, equally probable, for only one of which the defendant would be responsible; a jury cannot be allowed to find a verdict on the basis of a mere guess or conjecture; . . .”

We agree with plaintiffs that Werner was not responsible for their injuries. Plaintiffs’ evidence, whether considered alone or with all the other evidence in the case was insufficient to establish negligence on the part of Werner, the additional defendant, and judgment will be here entered in his favor non obstante veredicto.

Laria

The testimony involving Laria, the original defendant, was meager but sufficient to take the case to the jury. Mrs. Karcesky testified that she was hit by an automobile. Laria admitted that he saw plaintiffs standing in the center of Seventh Avenue when he was 40 feet from them, and that he never looked or saw them again until he was passing them, at which time he saw out of the corner of his eye “something fell”. He instantly put on his brakes and “stopped dead”. Plaintiffs were found lying on Seventh Avenue, Mrs. Karcesky with her head on the center line and her body extending in a southeasterly direction to a point within 4 feet from the left front wheel of Laria’s car. Karcesky was found about 3 feet from the left rear wheel of Laria’s car. Marks were found on the left front bumper and left front fender of Laria’s coa', and Mrs. Karcesky’s purse was found “sitting on the left front fender of the Laria car”. Laria denied hitting the plaintiffs, bnt at one point admitted that “two people had walked into the side” of his car.

It is well settled that the mere happening of an accident or a collision betAveen an automobile and a pedestrian is not evidence or proof of negligence and plaintiffs cannot recover if they were guilty of contributory negligence: Thompson v. Gorman, 366 Pa. 242, 77 A. 2d 413; Fries v. Ritter, 381 Pa., supra.

No one saw Laria’s car strike the plaintiffs and there was no proof of the speed of his car, although the fact that he stopped so quickly makes it obvious that he was driving slowly.

“It is not necessary to prove the accident by eye Avitnesses, but Avhere circumstantial evidence is relied upon to prove negligence the evidence must be such as to enable the jury to conclude — not by conjecture or guess but — as a reasonable and legitimate inference that the accident Avas caused by the negligence of the defendant. In order to do so the evidence must clearly and sufficiently describe or picture the happening of the accident in such a manner that the only reasonable inference

* and conclusion from the facts and circumstances which were proved is that defendant was negligent: Ebersole v. Beistline, 368 Pa., supra; Finnin v. Neubert, 378 Pa., supra”: Fries v. Ritter, 381 Pa., supra.

The circumstantial evidence in this case was sufficient to make out a prima facie case of negligence on the part of Laria. Plaintiffs were not guilty of contributory negligence merely because they attempted to cross a street between intersections: Elbell, Admr. v. Smith, 357 Pa. 490, 55 A. 2d 321; and we cannot say that plaintiffs’ failure to look before they took a step forward was, under all the evidence in this case, sufficient to make them guilty of contributory negligence as a matter of law.

Inadequacy of the Verdict

That brings us to the final question: Did the refusal of the lower Court (the trial Judge) to grant a new trial because of the inadequacy of the verdict constitute a gross abuse of discretion? Carpenelli v. Scranton Bus Company, 350 Pa. 184, 38 A. 2d 44; Nikisher v. Benninger, 377 Pa. 564, 105 A. 2d 281.

Mr. Karcesky offered evidence to prove that he suffered a fracture of the left clavicle and severe contusions to the left forearm and left shoulder which, according to defendant’s doctor, were completely healed. He was in the hospital 17 days. His doctors’ bills for himself and his wife totaled nearly $1,700.; his hospital expenses were approximately $1,000., and he claimed a loss of wages of $720.00 We believe it is clear that the jury gave Karcesky a sympathy verdict <to cover the actual costs and expenses of his and his wife’s injuries and what they believed was his actual loss of wages.

Mrs. Karcesky offered evidence to prove that she suffered fractures of three front teeth, a fracture of the sacrum, and of the pelvis, and of the left fibula, a sprain of the lower back, hematoma of the left thigh and small bruises; — all of which injuries were cleared up and healed within a year, according to the defendant’s doctor. She was in the hospital 75 days and claimed she could do only part time work for approximately two years, and her future earnings would be impaired. If her testimony and that of her .doctors was believed her total loss of estimated earnings would amount to approximately $4,000. The jury’s verdict of $2,000. was obviously a sympathy verdict either for pain and suffering or for estimated loss of earnings. The small amount of the verdict for each plaintiff was obviously due to the jury’s belief that the plaintiffs stepped into the path of defendant’s car without looking and consequently contributed substantially to their own accident.

The lower Court in refusing plaintiffs’ motion for a new trial said: “The contributory negligence of plaintiffs’ and negligence of defendant and additional defendant were debatable questions in this case. The verdict could have been for plaintiffs or defendants. Under such circumstances, the amount awarded usually reflects a compromise by the jury in reaching a conclusion on the negligence question. . . . The verdict was substantial. It was more than the actual expenses.* We conclude that a new trial should not be granted.”

The doctrine of comparative negligence, or degrees of negligence, is not recognized by the Courts of Pennsylvania, but as a practical matter they are frequently taken into consideration by a jury. The net result, as every trial judge knows, is that in a large majority of negligence cases where the evidence of negligence is not clear, or where the question of contributory negligence is not free from doubt, the jury brings in a compromise verdict. Moreover, it is important to remember that neither a jury nor a judge who sees and hears the witnesses have to believe everything or indeed anything that a plaintiff (or a defendant) or his doctor, or his other witnesses say, even though their testimony is uncontradicted. In the instant case twelve reasonable men could have serious doubt as to whether Laria was negligent; and if Laria was negligent, whether the accident was caused by his negligence or by the contributory negligence of the plaintiffs or partly by the negligence of each of them. Under such circumstances, a jury usually does what this jury did, namely, render a compromise verdict which is much smaller in amount than they would have awarded (a) if defendant’s negligence was clear, and (b) if they were convinced that plaintiffs were free from contributory negligence.

Where the evidence of negligence or contributory negligence, or both, is conflicting or not free from doubt, a trial judge has the power to uphold the time-honored right of a jury to render a compromise verdict, and to sustain a verdict which is substantial — a capricious verdict or one against the weight of the evidence or against the law, can and should always be corrected by the Court.

Where the verdict is, as here, substantial, a new trial “for inadequacy” should be granted only when the trial court is convinced the verdict is so unreasonably low as to present a clear case of injustice even in the light of the doubtful negligence of defendant or the doubtful contributory negligence of the plaintiff, or both: Cf. Takac v. Bamford, 370 Pa. 389, 88 A. 2d 86; Nikisher v. Benninger, 377 Pa., supra; Carpenelli v. Scranton Bus Company, 350 Pa., supra.

The law is thus stated by Mr. Justice Stearns in the recent case of Nikisher v. Benninger, 377 Pa., supra, as follows: “. . . In Carpenelli v. Scranton Bus Company, 350 Pa. 184, [at page 187], 38 A. 2d 44, [at page 45], the rule is accurately stated by Mr. Justice Horace Stern (now Chief Justice) . . .:

“ When a court grants a new trial on the ground of inadequacy of the verdict an appellate court, in the absence of a gross abuse of discretion, will not interfere : Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295; Pretka v. Wilson, 325 Pa. 491, 190 A. 722. When a trial court refuses to grant relief against an allegedly inadequate verdict an appellate court will exercise even greater caution in reviewing its action. * * *’ ”

Factually, the instant case is on all fours with Carpenelli v. Scranton Bus Company, 350 Pa., supra. In the Carpenelli case the preponderance of the evidence on the question of liability was strongly in favor of defendant. Plaintiff proved in that case that he suffered a fracture of the right femur, spent a year in the hospital, had actual medical expenses of $2,600., was permanently disabled from performing any kind of manual work, and had large loss of earnings and earning power. The jury returned a verdict for plaintiff of only $3,000. The lower Court denied plaintiffs motion for a new trial on the ground of the inadequacy of the verdict, and we affirmed. The Court, speaking through the present Chief Justice, said (page 188) : “. . . when liability is admitted by the defendant, or when the evidence is clearly preponderant in favor of the plaintiff, it is likewise possible to say, with some fair measure of certainty, whether the verdict properly covered the items of damage for which recovery should have been allowed or whether it was inadequate. But when the evidence is equally divided in weight, or, a fortiori, when the preponderance of testimony is clearly with the defendant and the verdict rendered for the plaintiff, while small, is substantial, the problem becomes one of an entirely different nature, for in such event it can no more reasonably be said that the plaintiff recovered too little than that he should not have recovered at all; therefore, in such a case, it is just as likely, or more likely, that the granting of a new trial would constitute an act of injustice to the defendant rather than one of justice to the plaintiff.”

In Nikisher v. Benninger, 377 Pa., supra, the trial Court dismissed a motion for new trial on the ground of inadequacy of the verdict, and we reversed, holding the lower Court had grossly abused its discretion. In that case, however, this Court found that liability of the defendant was conceded. Both cases are therefore reconcilable on their facts, although some of the language in each opinion must be confined to the particular case.

It is apparent that in cases where the question of defendant’s negligence and of plaintiffs’ contributory negligence are doubtful, the position of an appellate court is sometimes a difficult one. Where, as here, the verdicts are substantial and the plausible and likely view of the accident is that plaintiffs were equally or mostly to blame, we cannot find that a trial Judge who saw and heard the witnesses grossly abused his discretion in refusing a new trial because of inadequacy of the verdict.

Judgment is here entered in favor of additional defendant, Arvid R. Werner, non obstante veredicto.

The judgment entered on the verdict of the jury awarding the sum of $3,000. to John Karcesky, and the sum of $2,000. to Christina Karcesky, against the original defendant, Sam Laria, is affirmed.

Italics throughout, ours.

The verdict also included some loss of wages, and the wife .received a rather small but substantial verdict for pain and suffering.