This is an appeal from an order of the Court of Common Pleas for Philadelphia County granting plaintiffs’ Motion for New Trial as to damages only.
This action was commenced in 1979. Plaintiffs were Gilbert Guidry and his wife, Kathryn. For a number of years Mr. Guidry had been employed at job sites, including the Philаdelphia Naval Shipyard, where he had been exposed to asbestos. He also had a long history of smoking. At the time of suit, Mr. Guidry had not been diagnosed as suffering from lung cancer. However, in 1980, this diagnosis was made and six months later, Mr. Guidry died. He was then 50 years old. Mrs. Guidry was substituted as a plaintiff, suing as executrix of her husband’s estate. The complaint alleged negligence and strict liability. It named thirty-seven defendants, all allegedly responsible for Mr. Guidry’s asbestos-related injuries. Of these thirty-seven, thirty had settled prior to trial. Six others were dismissed from the suit for various reasоns not relevant here.
Thus, at the time of trial, only appellant GAF remained as a non-settled defendant. The trial court ordered the trial of GAF’s cross-claims against the settled defendants severed from the trial of plaintiffs’ action against GAF. A jury trial resulted in a verdict for рlaintiffs and an award of $185,000 to Mrs. Guidry as executrix and $10,000 in her own right.
Plaintiff filed a Motion for New Trial as to Damages Only, alleging that the damages award was inadequate. GAF filed Cross Post Trial Motions consisting of a Motion to Mould the Verdict, Motion for Judgment N.O.V., and Motion for New Trial on Liability. In the Motion to Mould the Verdict, GAF asserted that since plaintiff admittedly had already received settlement payments from the settled defendants in an amount exceeding the amount of the verdict, GAF had no liability to plaintiff and the verdict should be molded and marked satisfied to indiсate this fact. In the Motions for Judgment N.O.V. and New Trial as to Liability, GAF alleged a variety of trial errors, including errors in the court’s charge and evidentiary rulings.
*311 In the preface to these motions, GAF described its., position as follows:
Defendant GAF Corporation requests that the Court dismiss аnd deny any and all requests made in the Plaintiffs Post Trial Motions. In addition to disputing plaintiffs assignments of error, defendant asserts that the issues of liability and damages are so interwoven that a new trial as to damages only would constitute a complete denial of justice. Further, Defendant GAF moves that the Court consider Defendant GAF’s Cross Post Trial Motions re: Motion to Mould the Verdict to reflect settlements reached with joint tortfeasors. In the event the Court denies Plaintiff’s Post Trial Motions, Defendant’s Motions for Judgment N.O.V. and New Trial should be disregarded and only GAF’s Motion to Mould the Verdict should be considered. However, without waiver of this position, and only if the Court intends to grant Plaintiff a new trial as to damages, GAF Corporation moves that the Court consider Defendant GAF Corporation’s Cross Post Trial Motions re: Judgment N.O.V. and New Trial as to Liаbility-
In the prayer for relief at the end of GAF's Cross Post Trial Motions, this position was reiterated, as follows:
... [GAF requests] that the Court dismiss and deny Plaintiff’s Post Trial Motions. Further, it is requested that the Court grant the appropriate Cross Post Trial Motion of Defendant GAF Corporation re: Motion to Mould the Verdict. In the alternative and only in the event that the Court grants Plaintiff’s Post Trial Motions, then it is respectfully requested that the Court grant the appropriate Cross Post Trial Motions of Defendant GAF Corporation re: Judgment N.O.V. and New Trial as to Liability.
Thus, GAF’s post-trial positiоn was clearly that its motions for judgment n.o.v. and new trial, based on allegations of error in the trial court’s handling of the liability aspect of the trial, were to be considered only if the trial court granted plaintiffs motion for a new trial as to damages. If *312 the trial court denied plaintiffs motion, then GAF wanted the court to consider only GAF’s Motion to Mould the Verdict. 1
In an Order dated January 7,1986, the trial court granted plaintiffs’ Motion for a New Trial as to damages only. No trial court opinion in support of this order was authored. The court did not specifically refer to either GAF’s Motion to Mould the Verdict or to GAF’s Cross Post Trial Motions for Judgment N.O.V. or New Trial. However, since the court granted a new trial as to damages only, we can assume that the court impliedly also denied GAF’s Cross Post Trial Motions for Judgment N.O.V. and New Trial as to liability. No action appears to have been taken regarding the Motion to Mould the Verdict, presumably because this motion could not be acted upon until the conclusion of the new trial when damages were finally determined. GAF filed this timely appeal.
On appeal, GAF takes a position materially different from that it took in its post-trial filings. Before us, GAF not only argues that the trial court erred in granting plaintiff a new trial as to damages only but also argues that even if we reverse this decision, GAF is nevertheless entitled to a new trial as to liability. In other words, GAF now argues that even if we determine that the damages award should stand, a new trial as to liability alone is warranted.
As we will more fully discuss below, we agree with GAF that the trial court erred in granting a new trial as to damages. Given this determination, we will reverse the trial court’s order. However, we will not consider GAF’s remaining arguments in support of a new trial as to liability. As we have repeatedly stated, an appellant cannot assert one theory of error at trial and a different one on appeal.
See Commonwealth v. Gordon,
Since we have determined that in fact no new trial as to damages is warranted, we will hold GAF to its post-trial position and not consider its arguments in support of a new trial on liability. However, we will also remand to the trial court with an instruction that it consider GAF’s Motion to Mould the Verdiсt in light of our decision.
Turning now to a discussion of GAF’s challenge to the trial court’s grant of a new trial as to damages only, we begin by recognizing that the grant of a new trial is within the discretion of the trial court and will be reversed only where there has been a gross abuse of that discretion.
Wilson v. Nelson,
The standard that guides the trial court’s exercise of discretion is clear. As stated in
Burrell v. Philadelphia Electric Co.,
A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion: [citation omitted]. Neither should it ordinarily be granted on the ground that the verdict was against the weight of thе evidence where the evidence was conflicting and the jury might have found for either party.
Id.,
More specifically, the grant of new trial as to damages on the ground that the verdict is inadequate is appro
*314
priate only where “[t]he injustice of the verdict ... stand[s] fоrth like a beacon.”
Elza v. Chovan,
passion, prejudice, partiality or corruption, or that the jury disregarded the instructions of the court, or, in some instances where there was a vital misаpprehension or mistake on the part of the jury, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or according to some, whеre, otherwise, there has been an evident failure of justice to the plaintiff ...
Morris v. Peckyno,
The fact that a verdict is low, standing alone, does not indicate that the verdict is inadequate.
Id.
If the low verdict can be explained by viewing it as a compromise verdict, then it should not be disturbed on appeal.
Id.
Where the evidence is conflicting and the resulting verdict is low, the verdict may be regarded as a compromise verdict, i.e., “one where the jury, in doubt as to defendant’s negligence or plaintiff’s freedom from contributory negligence, brings in a vеrdict for the plaintiff but in a smaller amount than it would have if these questions had been free from doubt.”
Stokan v. Turnbull,
In a very recent pronouncement by our Supreme Court, these principles were reaffirmed. In
Boggavarapu v. Pon
*315
ist,
The Supreme Court reversed, noting that plaintiffs evidence of pain all related to pain allegedly resulting from the administration of the tetanus shots. The Court concluded from the verdict that the jury must have disbelieved plaintiffs evidence in this regard, choоsing rather to believe defendant’s medical testimony that the shots could not have caused the alleged pain. This it was the jury’s prerogative to do. Since the jury had disbelieved plaintiff’s evidence as to the cause of the pain, they were free to refuse to award pain and suffering damages.
Id.,
In the instant case, GAF contends that there is an equally supportable explanation for the facially low verdict. Here, GAF argues, the immediate cause of decedent’s death was lung cancer. There was medical expert testimony that decedent suffered from pleural asbestosis, resulting from exposure to asbestos, and from lung cancer. The expert testimony was conflicting as to whether the lung cancer resulted from decedent’s exposure to asbestos or smoking or both. In fаct, plaintiffs’ medical expert testified that both asbestos exposure and smoking contribute to the development of lung cancer and that their precise interaction is not yet fully understood. 2
*316 Moreover, there was evidence of the fact that decеdent suffered from both diabetes and hypertension and that both of these conditions may decrease an individual’s life expectancy. In fact, decedent’s mother was a diabetic and died at age 52 and his father died of heart disease at age 58.
Thus, although the рlaintiffs’ damages witness set decedent’s loss of future earning capacity at between $367,106 and $643,068, based on U.S. Government life expectancy tables and a variety of assumptions regarding decedent’s projected working life and compensation, the jury’s award оf a total of $195,000 can be explained as resulting from the jury’s attempt to reach a compromise based on conflicting evidence as to the cause of decedent’s pain and death. “It was the province of the jury below to resolve inconsistencies and contradictions, to disbelieve all or part of the testimony of the witnesses, and to thereafter compromise the verdict or establish an amount which it determined would justly compensate the plaintiff for his loss.”
Fierman,
The order of the trial court granting a new trial аs to damages only is reversed and the jury’s verdict is reinstated. The matter is remanded for further proceedings not inconsistent with this Opinion. Jurisdiction is relinquished.
Notes
. We also note that GAF’s briefs in support of its post-trial motions contained full argument in support of GAF’s opposition to a nеw trial on damages and as to its Motion to Mould the Verdict, but did not present full argument as to GAF’s allegations of error as to liability. As to these allegations, the brief contains merely a numbered list of the allegations, each supported by a single citation.
. In
Martin v. Owens-Coming Fiberglas Corp.,
The lead opinion in Martin was joined by two other justices. Justices Nix, Zappala and Hutchinson dissented. Justice McDermott separately concurred, clarifying that the majority opinion should not be construed as excluding consideration by the jury of the plaintiff s conduct in an asbestos case and indicating that on remand, the jury could return an even lower verdict if the evidence so warranted. The dissenters felt that the jury verdict, although low, should stand, having resulted from the jury’s consideration of all of the evidence before it.