Opinion
No. 36536
Decided December 21, 1960.
Appeal to Court of Appeals — Reversal on weight of evidence — Reviewing court to remand for new trial — Negligence action.
APPEAL from the Court of Appeals for Ashtabula County.
While plaintiff was riding as a passenger in one of defendant's passenger trains, a window beside plaintiff suddenly broke causing particles of glass to strike plaintiff and injure him. This action is to recover damages for the injuries thus sustained. Plaintiff contends that a brake shoe on the coach in front of the one in which he was riding dropped to the ground and bounced up and hit the window, causing it to break.
The case was submitted to a jury which returned a verdict for the plaintiff, on which judgment was rendered.
On appeal, the Court of Appeals, in its opinion, discussed at length the admissibility, weight, and prejudicial effect of evidence and came to the conclusion, as expressed in its journal entry, that "there is error manifest upon the face of the record to the prejudice of the appellant, in this, to wit: Prejudicial error in the record and also as being against the manifest weight of the evidence." The court, all three members concurring, reversed the judgment of the trial court and entered final judgment for defendant.
An appeal as of right and the allowance of a motion to certify the record bring the cause to this court for review.
Mr. Leo Waldman and Messrs. Nazor Nazor, for appellant.
Messrs. Dunlavy Mahoney, for appellee.
The Court of Appeals was in error in rendering final judgment after reversing the judgment of the trial court on the weight of the evidence. Its sole function was to set aside the judgment and remand the cause for a new trial. In re Adoption of Cassada, ante, 368. Therefore, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed and cause remanded.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.