*2 OLSZEWSKI, Before HOFFMAN, DEL SOLE and JJ. OLSZEWSKI, Judge:
This is appeal an from a judgment entered in favor *3 appellee a following by jury. Appellant trial claims is entitled to either in judgment its favor because the trial satisfy evidence did not the or, elements of negligence; alternative, the a new trial because the verdict was contrary weight the of the evidence and because the court committed reversible error during the course the trial. below, For reasons discussed we affirm the decision of the trial court.
The trial presented as facts follows. 17, 1982, May ... On 4:00 approximately p.m.[,] plain- tiff, Mildred Carney, and some of her co-workers left a conference and were heading home from their fourth floor offices Street, which are located at 801 Arch Phila- Pa., delphia, building in a managed by They Nacho. intended to use one the two self-operated elevators servicing the fourth floor. plaintiff When attempted to enter the elevator on the west side of the north wall immediately after co-worker, her the elevator doors closed suddenly began crushing and her. Plaintiff testi- fied injuries about as a result of the elevator doors her, crushing including persistent headache, injuries to neck, her back, low girdles shoulder and rib cage, and chest, Plaintiff also al- legs and back. in her soreness said injuries due to out of work leged that she was months. [twenty-two and one-half] of a mainte- subject question elevator was The Otis and Nacho. defendants agreement between nance for the maintenance responsible employee The Otis visits, weekly maintenance testified as to his elevator the elevator was that, 26, 1982, the door chain to April on question and that the elevator repaired, and was loose door locks. concerning open prior problems had had that, nothing there Further, testified while plaintiff she noticed that way opened, the doors odd about she was much more than usual when quickly doors closed that the doors did to enter the elevator and about themselves, causing her to be crushed. release DiMonte, witness, testi- Dr. Richard Finally, plaintiffs asked concerning injuries and was plaintiffs fied a reasonable opinion, he had an with Court whether injuries of medical whether the were degree certainty, in the affirm- replied of this accident. Dr. DiMonte result related to the and stated would be injuries ative accident.
Opinion It 2-3. $25,000 verdict returned a January jury
On apportioned Nacho. The liabili- against appellant February at fault. On ty, finding appellant 90% $20,000, entered a molded reflect- the trial court $5,000 procured against prior Nacho ing settlement *4 motion for appellant’s judg- trial. The trial court denied 30, n.o.v., on December ment and motion for new trial appeal This followed. to a
Appellant alleges judgment first that it is entitled at trial does not satis- presented its favor because evidence negligence. reviewing appellant’s the elements of In fy claim, guided by following principles: we are the n.o.v.,
In reviewing an order
we
denying judgment
evidence, together
must view the
with all reasonable
therefrom, in
light
appel-
inferences
the
most favorable to
See,
e.g., Lynch Metropoli
v.
lee as the verdict winner.
tan
Insurance
406,
427 Pa.
235 A.2d
Life
also,
Redevelopment
See
(1967).
Atkins
Urban
Authority
Pittsburgh,
344,
Pa.
Banas v. Matthews Corp., Internat'l 348 Pa.Super. 474-475, 502 A.2d
Appellee negligence by established an inference of rely- ipsa loquitur. res ing on the doctrine of main- tains that evidence was insufficient to establish ipsa loquitur. res elements of Court, Our Supreme Korvette, Gilbert v. (1974), adopted the res ipsa loquitor doctrine as provided Sec- tion 328 D of (Second) the Restatement of Torts. The provides: section
(1) It may be inferred that harm plain- suffered by tiff by is caused negligence of the defendant when
(a) the is event kind which does ordinarily occur in the of negligence; absence
(b) responsible causes, other including the conduct of plaintiff persons, and third are sufficiently eliminat- evidence; ed by the
(c) the negligence indicated is within the scope defendant’s plaintiff.
(2) It function determine whether may the inference reasonably drawn the jury, or whether must necessarily be drawn.
399 of the to determine whether (3) It is the function any case where different inference is to be drawn reasonably reached. may be conclusions doc- rationale behind the have determined that We prima a of out case making is to aid plaintiffs trine facie of allowing an inference defendants negligence against on the competent from evidence to be deduced negligence events, or ordinary injury in the course of theory occurred in the would not have damage complained of Chester, City v. Smith negligence. of absence of A.2d It is well Pa.Super. all three elements plaintiff satisfy must established that D(l) negligence before an inference of can of section 328 Id., citing Lanza injurious from incident. drawn an Poretti, ([E.D.Pa.] 1982). F.Supp. case, the trial court determined that
In the present Gilbert, res analogous making to those the facts were ipsa loquitur The further held that applicable. D(l). elements requisite had established the appellee support and the relevant case law We find that the record First, one clearly the event is finding.1 the trial court’s negli in the which would not have occurred absence entering she gence. as Appellee testified that release, elevator, did not upon the doors closed her and causing transcript, her 28. Additional to be crushed. Trial if door closed ly, stated that the elevator appellee normally Id. someone, reopen. employee on Appellant’s it would maintenance, also for indicated responsible Wyatt, Gordon malfunction. Trial tran that an elevator “door slam” is a 75-78. script,
Second, causes, we regarding the elimination other ex- necessary plaintiff it is not that a have declared a possible beyond clude all other causes accident Smith, supra, at reasonable doubt. a Rather, plaintiff is required present appropriate ipsa loquitor. This an case the utilization of res Gilbert, see also Williams supra; Elevator See Eastern *6 case from a jury may reasonably which conclude that the was, negligence not, probably more than that of the defend- (Second) ant. Restatement of Torts Section 328 D comment f. there Instantly, was appellee substantial evidence that addition, was not In negligent. Gordon Wyatt testified that inspections were within exclusively his control. We are appellee presented satisfied that sufficient evidence to elimi- responsible nate other causes.
Finally, negligence we conclude that the was within the of scope duty appellant’s appellee. aspect It is this of the doctrine that appellant emphatically asserts is estab by testimony lished presented at trial. con only tends that had a contractual reasonable inspection determined, which was not breached. We have however, by contracting to service and maintain the basis, elevator on weekly appellant is in exclusive control of the and may elevator be held liable caused injuries malfunction the elevator. Johnson v. Otis Elevator Co., 500, 225 Pa.Super. We have previously upon noted the duty appellant to service and maintain the elevators to or prevent elevators their components going Id., from “out control.” 225 Pa.Supe 503, rior Ct. A.2d at 657.
We find that presented the evidence was sufficient to satisfy the ipsa elements res loquitur from which the jury appropriately negligence. conclude, inferred We there fore, that the trial properly denied appellant’s motion for judgment n.o.v.
Next, appellant claims that it is entitled to a new trial because the verdict was contrary weight evidence. In reviewing claim, this we must consider that: decision to grant either or deny a motion for'new
[t]he grounds that the verdict [on weight of the is within the sound discretion of evidence] the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably discretion____ abused Supreme its Our Court has held that a new trial should granted only where the to shock one’s to the evidence as contrary is so Electric Philadelphia Burrell v. justice. sense of (1970). A trial should new 438 Pa. conflicting where the evidence granted not be nor where party, found for either might have the jury have reached a different conclu- the trial would same facts. sion on the Gold, v. A.2d
Myers
Ridge,
v.
1,
Instantly,
asserts
appellant
factually
of
are
unsubstantiated.
apportionment
liability
supra,
however,
indicates,
facts,
Scrutiny
discussed
adequate
support
jury’s
that
evidence
there
jury merely
will not disturb the verdict of the
verdict. We
might
different
have been reached.
because
a
Thompson
Merryweather Machinery,
&Motch
358 Pa.
149,
1226
satisfied that the
Super.
516 A.2d
We are
and,
weight
of
evidence
verdict was
therefore,
its
the trial court did not abuse
discretion
motion for
trial.
denying appellant’s
new
urges
new
Finally,
that
is entitled to a
appellant
errors
alleged
trial because
various
committed
during
course
will
trial court
of the trial. We
address
seriatim.
First,
appellant’s
claims
appellant
contentions
improperly questioned appellee’s
that
the trial court
wit
ness,
DiMonte,
attempt
Dr.
in an
to establish an element of
established, however,
It
appellee’s cause
action.
is well
a
right
trial
has the
and sometimes
Seabrook, 475
witnesses. Commonwealth v.
interrogate
(quoting
38,
(1977)
Commonwealth
Pa.
564
Myma,
505, 507-508,
See
486,
(1924));
123 A.
also
Whiting,
Commonwealth v.
465,
important
When an
fact is indefinite or a
disputed point
clarified,
needs to be
the Court
see
may
the examination. Common
it is done
by taking part
Britton,
wealth v.
334 Pa.Super.
1294,
482 A.2d
(quoting Myma, supra,
(1984)
507-508,
Pa. at
487).
exercising
A. at
In
this prerogative,
the trial court
Seabrook,
cannot unduly protract
testimony or
show bias.
supra,
Whiting, supra, 567;
In the instant a review of the record indicates that judge questioned the doctor in order to clarify the doctor, opinion of the which the court initially felt differed from statements made in the reports. doctor’s Opinion at 5. type This clarification is well within the trial court’s discretion.
Appellant also complains that the trial court erred permitting the introduction of a document which showed that appellant had inspected on May elevator replaced door on June 1982. Appellant asserts that the document contains inadmissible evidence of subsequent repairs. The trial permitted impeach evidence to the testimony Fox, worker, Mr. a maintenance who claimed he found the doors in working order on June
“It is well settled that evidence of subsequent
repair
not
impute
admissible to
antecedent negligence, but such
evidence may be admissible for other
purposes.”
relevant
O'Malley
Petroleum,
Inc.,
v. Peerless
Finally, appellant maintains that the trial court erred in refusing to charge the jury as to appellant’s suggested point for charge on burden of proof (“point Forty”). Appel- lant, however, did object with specificity to the trial transpired Instead, following dialogue charge. court’s additional request to attorneys when the invited instructions: number point my supplemental DI Also
MR. SIPIO: I out to the just pointed the one It ties with Forty. Court. I that. deny
THE will COURT: exception to the If I could have an MR. DI SIPIO: no in that there was wage loss statement about loss. evidence, wage of her specific evidence Trial record at indicating exception, specific declared that a
We have
of,
to
lodged
must
complained
language or omission
instruction. Crosbie
jury
an
to a
preserve
objection
304, 443 A.2d
Co.,
Pa.Super.
Elevator
Westinghouse
appellant
that
record discloses
(1982). Instantly,
instruc
jury
portion
to the
specifically object
failed to
Therefore,
error is
alleged
in question.
tions now
Inc.,
Lines,
v. Allied Van
deemed waived. Wilkerson
Herco, Inc.,
Orlando
Pa.Super.
(1986).2
144,
I to write appeal no was filed. The record the case from which $25,000 against returned a verdict reflects that Co., and found the Realty Appel- and Nacho Appellant trial, fault, at fault. Previous to the Nacho lant 10% 90% $5,000. Plaintiff settled for The trial court and the Nacho as a result of that settlement reduced molding the verdict $20,000. against the amount recoverable determined that the amount Recently, Supreme Court proportionate feasor in excess of its settling tort paid by does not damages, by jury, share of as determined nonsettling obligation pay tort feasor of the relieve full, Comparative Negligence share under the pro-rata its Markets, Eagle Act. Charles v. Giant case, to this Applying analysis of the Plaintiff should have been molded favor $22,500. in the sum of Defendant-Appellant or the verdict appealed preserved, Since this matter was not court should stand in this case. as it was molded the trial Pennsylvania COMMONWEALTH LOHMAN, Appellant. John Richard Superior Pennsylvania. Court of
Argued Oct.
Filed Jan.