Ensell v. Atlantic Refining Co.

Opinion by Cunningham, J., In a right-angle collision at the intersection of the west driveway of the Roosevelt Boulevard with Welsh Road on September 18, 1925, between a Ford sedan and a loaded three-ton truck of the Atlantic Refining Company, the sedan was damaged and Rebecca Ensell, the wife of the owner and driver, Albert Ensell, was injured. The Ford car was traveling toward Philadelphia and Mrs. Ensell and a small child were in the rear seat; the truck was proceeding northwestwardly upon Welsh Road and across the boulevard, in charge of defendant’s employe. In an action in the municipal court the husband recovered a verdict, of $103.28 for damages to his car and the wife a verdict for $800. This appeal is by the defendant from the judgment entered on the verdict in favor of Rebecca Ensell after its motions for a new trial and for judgment in its favor n. o. v. had been denied. The testimony was conflicting. As the respective drivers approached the intersection each had an unobstructed view of the other for a distance of at least a block. A grass plot in the middle of the boulevard divides *588 the driveway on the west, provided for vehicles approaching Philadelphia, from the driveway on the east, intended for vehicles leaving the city. Ensell’s version of the accident was that he reached the intersection first; that he was driving about twenty miles an hour; that the driver of defendant’s truck, approaching from the left, had crossed the east driveway and had slowed down in front of the grass plot to give Ensell the right of way; that when he was about half way over Welsh Eoad the driver of the truck “stepped on the gas and shot in front” of him; that in an effort to avoid the accident he applied his brakes and tried to turn to the right into Welsh Eoad but the right side of the truck caught the front part of his car and dragged it along with the truck about thirty feet into Welsh Eoad. The driver of defendant’s truck, after testifying that he was traveling from eight to ten miles per hour and that when he reached the intersection, after passing the grass plot, the Ford car was still approximately one hundred and fifty feet to the northeast, continued: “I kept on going out the Welsh Eoad and the first thing I felt was a tug in the rear of my car. I turned around, looked out of the car and I seen this Ford just dropping from my right rear wheel.” With this conflict in the testimony with respect to whether the driver of defendant’s truck arrived at the intersection such a substantial distance in advance of the Ford ear that the statutory rule was not applicable (Weber v. Greenebaum, 270 Pa. 382), and with relation to other material facts, the case was clearly for the jury. The first assignment, charging error in dismissing defendant’s motion for judgment n. o. v., is accordingly overruled. The remaining assignment is to the refusal of a new trial. The only ground for a new trial requiring consideration is that the verdict in behalf of the wife *589 is excessive. Appellant contends that the refusal of a new trial was such an abuse of discretion by the court below as to justify a reversal. The injuries to the wife resulting from the accident were not serious — they consisted of a bump on her forehead and what she described as a “brush” bruise on her arm. She testified that she did not notice the arm particularly on the day of the accident, but added “the next day it caught me in my whole side and my shoulder”; that for some time after the accident the injury to the arm interfered with the performance of her household duties and that she had been in a nervous condition since the accident. The testimony discloses that she consulted two physicians, Drs. Erney and Swaine, shortly after the accident but neither was called as a witness. In May, 1926, eight months after the accident, Dr. G-ilpin was called to attend Mrs. Ensell and treated her until October, 1926, when Dr. Cancelmo was also consulted. These physicians were called and testified that during the period they treated Mrs. Ensell she was suffering from a lung affection. It soon became apparent from their testimony that this condition was not attributable in any way to the accident and upon motion of the defendant their testimony was stricken from the record. The trial judge referring to this matter in his charge instructed the jury that the testimony of these physicians had been removed by him from their consideration and was not before them, and said “you have no right to remember or to consider anything that those two physicians attempted to tell you from the witness stand.” In its opinion refusing a new trial the court below said: “We regard the verdict as reasonable compensation to the wife for the injuries suffered by her.” Although this verdict may be larger than an appellate court, sitting as jurors, would probably be disposed to render under the evi *590 deuce (Kaechele v. Traction Company, 15 Pa. Superior Ct. 73), it is not our province to weigh the evidence for the purpose of determining what would be a proper amount. The rule is well stated in Scott, Admx., v. American Express Company, 257 Pa. 25, in this language: “Since the passage of the Act of May 20, 1891, P. L. 101, giving this court power to set aside verdicts deemed to be excessive, we have repeatedly said that the question of the amount of the verdict would be reviewed only in cases where so grossly excessive as to shock our sense of justice, and where the impropriety of allowing a verdict to stand is so manifest as to show a clear abuse of discretion on the part of the court below in refusing to set it aside: Quigley v. Penna. R. R. Co., 210 Pa. 162; Reed v. Pittsburgh, Carnegie & Western R. R., 210 Pa. 211; Dunlap v. Pittsburgh, Harmony, Butler and New Castle Ry. Co., 247 Pa. 230.” See also Potts v. Guthrie, 282 Pa. 200. We are of opinion that the verdict was not so excessive as to call for interference upon our part. Judgment affirmed.