199 Pa. Super. 638 | Pa. Super. Ct. | 1962
Opinion by
On May 27, 1960, Moss Abels, while a pedestrian on the sidewalk along West South Street in the City of Uniontown, was struck and injured by a motor vehicle owned and operated by Daisy Rankin, who had lost control of her car in attempting to make a left-hand turn. Abels instituted a trespass suit which was heard by Honorable Edward Dumbauld and a jury. After a three-day trial the jury returned a verdict for the plaintiff in the sum of $3,500.00. The plaintiff thereafter filed a motion for a new trial. Prior to the argument on this motion, Judge Dumbauld resigned as a member of the Court of Common Pleas of Fayette County and took office as a Judge of the United States District Court for the Western District of Pennsylvania. The motion was argued before the court en banc which tribunal, in an able opinion by Judge Feigus, refused to grant a new trial. From the entry of judgment on the verdict, plaintiff has taken this appeal.
Appellant first contends that the trial judge erred in refusing to affirm his second point for charge to the effect that the testimony of appellant’s attending surgeon was entitled to greater weight than that of defendant’s expert witness.
Appellant argues that our Supreme Court "has not hesitated to express its opinion on the weight of expert testimony", citing Conway Will, 366 Pa. 641, 79 A. 2d 208, Pochron Will, 367 Pa. 306, 80 A. 2d 794, and Libengood v. Pa. R. R. Co., 358 Pa. 7, 55 A. 2d 756. The discussion in those cases related to the comparative weight of factual testimony as opposed to opinion testimony. In the case at bar there was conflicting opinion testimony, and the jury chose to accept the opinion of Dr. Pochapin. Also cited are Sonson v. J.C. Penney Co., 361 Pa. 572, 65 A. 2d 382, and Kissell v. Kissell, 163 Pa. Superior Ct. 288, 60 A. 2d 834, but these cases fall far short of supporting appellant's contention. Whether a necessity for opinion evidence exists, and whether the witness is qualified, are questions to be determined in the first instance by the trial judge: Cooper v. Metropolitan Life Insurance Co., 323 Pa. 295, 186 A. 125; Hencken v. Bethlehem Municipal Water Authority, 364 Pa. 408, 72 A. 2d 264; Ruby v. Pa. R. R., 61 York L. R. 17. Once the testimony is admitted, however, the credibility of the witness lies strictly within the sole province of the jury: Pryor v. Graff, 179 Pa. Superior Ct. 622, 117 A. 2d 818.
In Bolton v. Central Pennsylvania Traction Co., 219 Pa. 83, 67 A. 950, our Supreme Court approved the following charge concerning the weight to be accorded
Appellant’s second and third contentions may be treated together. It is appellant’s position that the court below abused its discretion in refusing to grant a new trial on the ground that the verdict (a) was against the weight of the evidence, and (b) was inadequate. Appellant argues that his expenses amounted to $3,980.80, whereas the verdict was only $3,500.00. The obvious answer is that the jurors adopted Dr. Pochapin’s opinion that there was no causal connection between the stomach resection and the accident. It should be noted that the expenses resulting from the initial back injury amounted to only $281.00. The balance of the expenses were incurred in connection with the operation. Separating the expenses of the back injury from the expenses relating to the stomach resection we conclude, as did the court below, that the verdict was neither shocking nor unwarranted.
The appellate court is not justified in declaring the lower court guilty of an abuse of discretion in refusing to grant a new trial unless clearly convinced by the record that the jury was influenced by partiality, passion, prejudice or some misconception of the law or the evidence: Gottlob v. Hillegas, 195 Pa. Superior Ct. 453, 171 A. 2d 868. So long as the verdict bears a
Order affirmed.
Daisy Rankin died on November 11, 1961, and ber executor bas been substituted of record.
“On the issues of causation of a duodenal ulcer and whether or not plaintiff had such duodenal ulcer, the evidence of plaintiff’s