Opinion
Argued September 9, 1964 —
Decided September 21, 1964.
Appeal from the Superior Court, Appellate Division.
On appeal from a judgment of the Superior Court, Appellate Division where the following opinion was filed:
"Plaintiff sued for damages sustained when he walked through a glass panel in defendant's supermarket. The jury returned a verdict of $20,000 in favor of plaintiff. Defendant moved for a new trial as to all issues on the grounds that the verdict was `contrary to the weight of the evidence' and `excessive.' The judge denied the motion for a new trial, but reduced the verdict to $10,000, which plaintiff agreed to accept. Defendant appeals.
"Defendant's sole contention in this appeal is that it is entitled to a new trial as to all issues. It does not ask for a further reduction of the verdict or for a new trial as to damages only. Its argument is that the $20,000 verdict was so excessive as to establish beyond a doubt that the jurors were possessed by prejudice, partiality or passion; that it is hardly likely that a jury so moved could have decided the issue of liability fairly; and, therefore, the entire verdict is tainted and justice requires a new trial as to all issues. See Rommell v. United States Steel Corp., 66 N.J. Super. 30 ( App. Div. 1961), certif. denied 34 N.J. 580 (1961); Marty v. Erie R.R. Co., 62 N.J. Super. 458, 469 ( App. Div. 1960), certif. denied 33 N.J. 387 (1960); Purpura v. Public Service Elec. Gas Co., 53 N.J. Super. 475, 478 ( App. Div. 1959), certif. denied 29 N.J. 278 (1959).
" Remittitur (or additur) may be employed only in cases in which a new trial as to damages only is proper. Moran v. Feitis, 69 N.J. Super. 531 , 540 ( App. Div. 1961), certif. denied 36 N.J. 299 (1962). Whether to increase or decrease a verdict or, alternatively, to grant a new trial as to all or part of the issues, is a matter within the discretion of the trial court, `not to be disturbed by an appellate court, except where the interests of justice manifestly so require.' Rommell v. United States Steel Corp., supra, at p. 48; cf. Kulbacki v. Sobchinsky, 38 N.J. 435 , 446-452 (1962).
"In his opinion denying a new trial as to all issues, the trial judge said `the defendant presented no evidence whatsoever in defense of the allegation of negligence,' and stated that the verdict as to liability was justified by the evidence. No stenographic record was made of the testimony. The agreed statement of evidence, prepared pursuant to R.R. 1:6-3, shows that plaintiff and a consulting engineer testified as to defendant's negligence. It appears that defendant's defense was predicated upon the proposition that the plaintiff walked through what was, in effect, the left wall of a newly constructed glass-enclosed vestibule; that the inner and outer doors of the vestibule were plainly marked `In' with large decals; that plaintiff entered through the outer door but, instead of continuing through the inner door, he turned left and walked into the glass wall. However, plaintiff (who was over 70 years old at the time of the accident) testified that, after he walked through the outer door, he was unaware that he was in a glass-enclosed vestibule; `that once inside, seeing nothing but counters, merchandise and customers in the store, he continued his walk forward and walked into and through a large pane of glass of which he was unaware * * *. There was no sign visible or invisible indicating the presence of the glass panel.' He testified also `that he had been, prior to his accident, a regular customer of defendant's store * * * for some time, visiting it usually twice per week; but that * * * was the first time he had ever attempted to enter the store by means of the newly constructed vestibule entrance.' Defendant's manager testified that the inner and outer doors of the vestibule `were identical' and that both had large decals marked `In,' but plaintiff `introduced into evidence photographs of the vestibule in question which photographs indicated that the second door of the vestibule was unmarked by any decal indicating "In."'
"Guided by the rules enunciated in the Rommell and Kulbacki cases, we find no reason to overturn the trial court's determination that a new trial as to all issues was not necessary. Cf. Lewis v. Read, 80 N.J. Super. 148 , 176 ( App. Div. 1963), certif. granted 41 N.J. 121 (1963).
"The judgment is affirmed."
Mr. Robert T. Quackenboss argued the cause for appellant ( Messrs. Burton, Seidman Burton, attorneys).
Mr. Albert W. Seaman argued the cause for respondent ( Messrs. Seaman, Williams Seaman, attorneys).
The judgment is affirmed for the reasons expressed in the opinion of the Appellate Division.
For affirmance — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, SCHETTINO and HANEMAN — 6.
For reversal and remandment for new trial as to damages only — Justice HALL — 1.