*1 and the intent as the scheme specific disclosed of her will. language I
For hold testatrix reasons, these has directed in her required by “otherwise will” Act July 2,1937, taxes should be out of the paid residuary estate before distribution.
Mr. Justice joins this dissenting opin- Musmanno ion. Appellant, v. Bamford.
Takac, *2 1952. Before March C. Argued Drew, J., Chidsey and JJ. Stearne, Jones, Bell, Musmanno, S. George Goldstein, for appellant.
Ernest C. with him Reif, Dickie, Chil McCamey, & for cote, Robinson, appellees. Reif Opinion Mr. Justice Jones, April 23, 1952: plaintiff The sued to recover damages personal injuries suffered while a passenger hire on a bus firm. The negligence defendant charged was to. .the-driver’s failure operate bus properly .faulty-and -alleged At .equipment. defective bus trial, rendered for the verdict the snm plaintiff The for a trial $3,000. alleging moved new that and that the in- jury’s inadequate verdict and fundamental adequacy was result basic error trial The court en charge judge. denied judg- banc motion entered ment on the this brought appeal verdict. court’s refusal error lower assigns motion for a trial. new
The matter complains whereof appellant neither basic nor error. it was fundamental Indeed, judge properly not error at all. The learned on the plaintiff that the burden was charged of the defendants was prove negligence *3 dam he injury sought cause of the proximate if the they The court then instructed ages. jury that, brakes on the due to defective found the accident was indicated, the the plaintiff evidence bus, carrier) common (a incumbent on the defendants then on their part care exculpatory of produce to evidence That instruction the bus’s equipment. in of respect 352 Pa. Nebel v. Burrelli, correct: see manifestly Rail Archer v. Pittsburgh 41 A. 2d 873; 70, 74-75, A. 2d 37 539. Pa. 548-549, Company, 547, ways that the really complains What the plaintiff an say inspec- to whether left it to the judge trial de- as the court (merely “cursory” the brakes tion descending before the driver it) by nominated from a fail- out of control bus went hill where the defendants on the the burden met brakes ure its court Could We fail to see how regard. relevant considera- jury’s from the such excluded have the defend- error against possible risking without tion might verdict jeopardy ants' that for that reason have been It well may recover.- sub- particular question did not- counsel plaintiff’s, In it-was any. event, charge. at mission time the. not until after the jury had retired to on deliberate its verdict that plaintiff’s counsel casually observed, —“I was wondering, if that your was a fair Honor, statement of the that the mere fact that law, the driver had made his effort to test could brakes be con- sidered the jury as evidence of . . .” exculpation . subject matter of Obviously, counsel’s com- present plaint with the charge was his mind at the time. he failed Yet, to make any request further or other instruction. On the the trial contrary, when judge inquired expressly whether had “any- counsel thing further”, your replied “No, Honor, you have — covered everything.”
It is clear that driver’s about testing his brakes could not properly been ignored by the court when applying to the testimony. law only possible question open con- nection is whether judge indicated adequately the weakness of that It testimony. was the plaintiff’s if he felt harmed such duty, regard, request court’s elaboration or further instruction with respect to the extent of the probative value of the exculpatory testimony. not having so Counsel, cannot requested, charge now the court failure with to instruct the jury As said Mr. Justice adequately. in Susser Steen 350 Pa. 39 A. 2d 430, . . a Wiley, 616, party —“. *4 not remain may silent and take his chances on a ver- if it be dict, adverse com- then, disappointing], [or of an plain which could inadequacy have been cor- rected.”
But the charge was not in the inadequate particular by assailed the With marked appellant.' fairness the trial plaintiff,- (cid:127)the judge effectively minimized the testimony driver’s as to his of the testing brakes. Thus, the- court said to the I jury, stated originally, —“As if can they establish that this an was accident which occurred-without fault or on their negligence part,
393 then there can he no defend- recovery. the However, not establish ant did or offer any evidence to excul- or to that pate they themselves show not negli- were and the I in only that the case observed gent, indicate in .might that that connection anything was of testimony the driver himself the plaintiff’s the [in made before cursory who examination case], the bus out of the terminal. ... It seem taking to me that a common carrier whom is the burden upon not in exercising highest degree only care, in that its but a bus was operating buses, providing dem- testimony should offer additional good order, fact not that That onstrating they negligent. were as the feature is the here insofar liability situation not concerned.” The could plaintiff justly of this case is more. asked harmed court’s sub- plaintiff by Nor As in- testimony. of the driver’s exculpatory mission quota- the last foregoing dicated sentence to the only question such went tion, liable and the held them liability defendants’ had the been unsubstantial sum. Even submission not Cf. Garris harmless view result. error, Pa. A. aff’d. curiam. per Bell, 33, 34, the record could conclude from justifiably How we not ap- that inadequate verdict was in this case the amount of the course, by comparing Of parent. damages plain- the extent verdict with to have appear the verdict would asserted, tiff fact there is, that compensatory. however, been evidence adduced conflicts serious were character of the work to the respect with effect of prior accident, had performed and the prob- to return to work ability on his injury It is true incapacity. duration his able twenty-one from work away remained is noth- there injury. following However, months *5 ing unsupported suggest in but Ms word to that Ms jury required away long. Mm from to remain work so doctor and medical at trial testified that His witness by X-ray, injury, had healed as revealed satis factorily ninety days. By his own admission, driving plaintiff was months after the around seven just purchased accident had automobile which he walking moving picture and and attended shows went keeping young lady com he was with with whom pany. very patently impression He tried to create the testimony his at a local mill that his work steel required heavy lifting in had do for him to jury incapacitated had the fact is that his while him, employment, the time of six-sevenths of his work pay department to his from the as testified witness company, kind of the had been same clerical, steel —the finally given do did return he was to when work contradict this to He resumed the stand to work. even (his own) from had testified disinterested witness who documentary province of the records. It was the appraise do and, to the worth' of the so jury very evidently ing, not some of did accredit plaintiff’s damages. What asserted the elements Superior Zamojc 127 Pa. Ct. said Fisher, 171, apposite especially 193 A. here: “The ver is 315, having regard to small, dict injuries expenses and in connection with them, as to his merely .... not nominal it is but substantial enough reimburse of the verdict was amount from for his time lost work because testimony, according and for medical to his his accident, pain expenses, hospital allowance for without might suffering. well found that But padded, and it was them bill was doctor’s injury required ab he received whether decide (Emphasis sup eighteen-weeks” from work sence _ v plied).'- . .. '.
395 In the court en banc in an case, opin the instant trial and ion the learned who saw by judge, written and his both and lay the plaintiff witnesses, heard a careful of the to after review evidence as medical, concluded that and the conflicts damages therein, not jury’s finding. could disturb properly of a trial inadequacy or refusal new grant trial a matter for the discretion of the is sound verdict action not be on ex court whose will reversed appeal of discretion a for a clear abuse such as where cept refused when verdict is so unreason new is a clear Fabel injustice: to case ably present low as Pa. Ct. 43 A. 2d v. Superior 416, 422, 373; Hazlett, v. 136 Pa. Pittsburgh Railways Patterson Company, 2d Ct. 7 A. Superior 478; Zamojc Fisher, record in 172-173. The this case discloses at pp. supra, no abuse. such for the his zeal to demonstrate appellant,
Counsel has the verdict is inadequate, improperly injected- both brief oral on this ref- appeal, argument, to an offer of settlement made by erence defendants’ rejected. at trial the plaintiff counsel Such mat- record of no the case and ter is has no part prop- before us. It is improper ar place counsel sway to court with reviewing to statements try as to made the course of offers of settlement the litiga- to to such impart as it is endeavor tion information A to be litigant penalized jury. to offer of settlement which his of his liberality adversary to accept. refused affirmed.
Judgment Opinion Dissenting Mr. Justice Musmanno: de- a motor bus belonging 8, 1948, May On proceed- while pothers, Bamford partnership fendant in the Mun- roadway Bprough a declivitous on ing Allegheny County, dashed out of control, broke hall, speed, high way crashed at a rate the road down attempt the driver’s a result of an embankment as into righted again jolted stop itself side, over on its it, finally con- the concomitant came to a halt, injury passengers all and to sternation of Joseph Among injured Y. Takac, one some. plaintiff in this case. against brought and ob- the defendants
He suit jury’s in the which ver- tained a verdict sum $3,000, *7 ground of over motion for a trial on the his new dict, inadequacy, affirmed the Court. was lower The the bus- verdict of the established that negligent that and it established further owner was injured negli- plaintiff result of that the was as the gence. unchallenged plain- The evidence is that day’s exception attendance at with the of one his tiff, (in lay-off) job' order to a technical absent avoid was employment May January from his from to 8, 1948, 1950. There is no the record that he was period. physically during pay- able to work that A Carnegie-Illinois Company, roll clerk for the Steel plaintiff’s employer, wages that testified Takac’s year. amounted to $2,600 X-rays back revealed fractures of processes right on lumbar transverse side with spinae muscle'spasm of the erector Dr. muscles. Samuel plaintiff April J. on who saw the tes- Rosen, 18, 1949, an tified that' “examination of the motions .of the approximately back at that time that there was showed percent fifty or limitation of restriction of all motion, spine, lumbar that is forward or back- motions bending bending and and side radiation.” The ward “Q. did further 'testified: the fracture Doctor,'- doctor processes any injury by result in transverse of these they any injury Did iii themselves? result the fractures neighborhood? parts any in the A. other Well, to any part fracture of produce to force sufficient to damage support- sufficient certainly vertebra are attached to those bones. ing structures A. Q. Ligaments are those structures? supporting What at first stricken and muscles.” was This the doctor’s further later from the record but answers doctor testified that the plain- reinstated it. The also disability. tiff a permanent partial would have plaintiff’s personal Dr. Shakari T. physi- Ilyas, ad- period years of two he testified over cian, ministered some treatments plaintiff, heat and diathermy, massage. consisting treatments He also for the lumbo-sacral prescribed plaintiff braces, three to the date prior consumed of which of trial. testified that he much experienced injuries as the result of his he although
pain that, to of economic return eager job, —because on occasions to do several necessity attempted —and unable to physically perform work as- so, him. He had been at employed Carnegie- signed years prior twelve plant Illinois accident, *8 in at the the structural open hearth, rolling working and a hooker At (chaining mills as times he beams.) referred to maker.” “slip did clerical as work, also four months the- accident Takac’s For following he unable to condition was such that straighten in and he had to The stooped position. walk tes- up indicated that although at the 37 timony only of he now tires is unable to do years age easily, heavy cannot walk reasonable has distances, difficulty work, in in because the his and can- sleeping pain back, usual of a man expected do the chores around even inclined before Athletically the house. the accident, in such mild engage cannot now exercises as bowling he The muscular and dancing. and disorganization nerve cannot his back that he even sit is such comfortably in a for the entire of a movie theatre showing picture. the
The doctor called defendant testified that by the plaintiff first time on October saw 24, and less than a examination con- half-hour’s 1949, had plaintiff cluded that from fully recovered his if original injuries. testimony Even this to be were at full it face no accepted value, way nega- plaintiff’s tive the as and disabilities prior October incapacities 1949. 24, Dr. U. A. Carpenter, physician referred to, called only by witness the defendant. Thus all the evidence introduced as to his plaintiff condition before October and the physical 24, 1949, introduced to time as lost from stand work, Of if course, uncontroverted. fit jury to do saw it could all have disbelieved so, testimony presented and behalf have returned a verdict for the but defendant; once it outrightly proclaimed favor thus held the defendant for the responsible plaintiff’s losses, it could not re- mathematical proved losses on ject behalf of the had they whom so person categorically decided. could turned a The deaf ear to the testi- on mony suffering pain, inconvenience endured by Takac and to be further endured Joseph but him, discard arbitrarily could not the evidence of actual from pocket financial loss the absence of any- —in from the contrary witness stand. thing A distrust jury may witnesses but it cannot ignore Once it acknowledges arithmetic. digits of the total 4. By it must its verdict accept defendant’s negligence and established the plain- the result disability negligence. tiff’s per year were wages $2600 unquestioned, *9 months of work was absence undenied. He, alone lost His medical wages $4500. ex- therefore, His out-and-out financial totaled im- penses $682.75. pairment up nothing allowing to the time of the trial, suffering pain, (which, in and inconvenience it- not inconsiderable and must be conceded from self, evidence) in the face of those How, $5232.75. figures accepted? can established sum be $3,000 put stamp approval are to a Unless we on a verdict simplest problem which defies blackboard in addi- imperative. trial here a new is This verdict should tion, to stand more a not be allowed than verdict which party litigant disputed prop- declare owner erty deny right him prop- but would to enter that erty. Supreme Superior reports
Our Court abound to the effect that with decisions where a verdict is so grossly justice, excessive to shock our as sense must be reduced or a verdict new trial ordered. If we why can be shocked an excessive can we verdict, obviously inadequate shocked an not be verdict? If why too much causes a revulsion, shouldn’t too little equal an abhorrence? If recoil from awaken we a ver- why dict which is should be bloated, we indifferent gaunt? ato verdict which
Why an larder should overfull shock our conscience empty Why or an half-full one? than more should disturbing bread more be than an extra loaf a desic- crust? cated jury’s impeccable
If take a verdict an we judgment,. then it should not be infallible disturbed appellate an court the amount of believes whether plentiful meager. ap- or is too too But if an verdict may, judgment pellate court substitute its does, judgment jury jury’s when the overfills the why it decline to should intervene when the well, empties If a can the well? be corrected when it why pantry, correcting should the meas- overstocks jury strips pantry when be bare? ure withheld *10 jury system is the best all system devised centuries for of justice the ascertainment between and man. man subject is Being human, course, error But the judges may greatest err also. of our not system government, virtue whole only the administration of but of our every justice, phase the check and democratic is balance procedure, device no or whereby person group persons may auto- or power cratic absolute unreviewable by anyone else. to direct new because error committed Thus, not discredit or even criticize the certainly to belittle the jury involved system It is simply putting into effect general. system. of our check-and-balance genius all I In these view considerations, reverse Court and judgment lower order a new trial. Appellant, Company. Booth and Flinn Ference,