Klekotka v. Chalfant

82 Pa. Super. 159, 1923 Pa. Super. LEXIS 261

• Court: Superior Court of Pennsylvania
• Decided: October 4, 1923
• Docket: Appeal, 77
• Status: Published

Opinion

Opinion by

Henderson, J.,

The appellant was injured by a truck driven by an employee of the defendants. The case was twice tried— the first trial resulting in a disagreement of the jury, and the second, in a verdict for the appellant for $50, and for his father for $122.50, the amount of expense for care of his minor son to which the latter was subjected, as a result of the accident. The injury complained of was a fracture of the boy’s leg. The only error assigned is the refusal'of the court to grant a new trial, the reason for a new trial being the inadequacy of the verdict in favor of the appellant. A consideration of the ease leads us to the conclusion that the court was not in error in overruling the appellant’s motion. The case was a very doubtful one and in the opinion of the trial judge, the weight of the evidence was with the defendants. The verdict was evidently a compromise and perhaps resulted from the sympathy of the jurors. It is a well established rule that the granting or refusing of a new trial is within the discretion of the court, and the exercise of such discretion is not renewable except for gross abuse. The error must be manifest to enable the appellate court to sustain an exception to such action of the trial court. A reference to Gallagher v. Phila. Rapid Transit Co., 248 Pa. 304; Smyth v. Phila. and West Chester Traction Co., 263 Pa. 511; and Class and Nachod Brewing Co. v. Giacobello, 277 Pa. 530, will show that appeals for the cause here assigned are seldom sustained and only in very clear cases. It is not manifest that the case under consideration is of that class.

The assignment is overruled and the judgment affirmed.