Opinion
October 7, 1931.
November 23, 1931.
Practice, C. P. — New trial — Appeals — Motion for judgment n. o. v. — Negligence — Evidence — Demands of justice.
1. If a new trial is granted, a binding motion for judgment n. o. v. necessarily falls, for a new trial and a judgment cannot be in effect at the same time in the same case. [352]
2. An order granting a new trial will be affirmed on appeal, where the opinion of the court below states that the question of negligence was a close one, and indicates that, while the court believed the evidence was sufficient to require the case to go to the jury, yet it felt that, under all the circumstances, the demands of justice required a new trial. [352]
Argued October 7, 1931.
Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
Appeals, Nos. 126 and 129, March T., 1931, by plaintiff and defendant, from judgment of C. P. Allegheny Co., Oct. T., 1928, No. 799, on verdict for plaintiff, in case of Pete Athas v. Fort Pitt Brewing Co. Affirmed.
Trespass for personal injuries. Before MacFARLANE, P. J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $15,000. Both plaintiff and defendant appealed.
Error assigned by plaintiff was granting new trial, by defendant was refusal of judgment for defendant n. o. v., quoting record seriatim.
George D. Wick, of Campbell, Wick, Houck, Thomas Nixon, with him Frank K. Willmann, for appellant, in Appeal No. 126.
W. W. Stoner, of J. M. Stoner Sons, for appellee, in Appeal No. 126, was not heard.
W. W. Stoner, of M. J. Stoner Sons, for appellant, in Appeal No. 129.
Frank K. Willmann and George D. Wick, of Campbell, Wick, Houck, Thomas Nixon, for appellee, in Appeal No. 129, were not heard.
Plaintiff sued in trespass to recover damages for personal injuries, the court refused binding instructions for defendant, the verdict of the jury was for plaintiff, defendant's motion for judgment non obstante veredicto was overruled, and its motion for a new trial granted. Plaintiff appeals from the award of a new trial, and defendant from the overruling of its motion for judgment non obstante veredicto. The two appeals were argued together and will be so treated here.
We will not rehearse the facts giving rise to the action. As said in March v. Phila. West Chester Traction Co., 285 Pa. 413, 416-17: "If [a new trial] is granted . . . . . . the pending motion for judgment non obstante veredicto necessarily falls, for a new trial and a judgment cannot be in effect at the same time in the same case. It follows that if the court below did not abuse its discretion in granting a new trial, it could not have erred in making the necessarily resultant order refusing judgment non obstante veredicto; and hence, in that event, we cannot reverse because it did so order." See also Regan v. Davis, 290 Pa. 167, 169; Lombardo v. Barilla, 302 Pa. 460, 461. Here, the opinion of the court below states the question of negligence was a close one, and indicates that, while the court believed the evidence was sufficient to require the case to go to the jury, yet it felt, under all the circumstances, the demands of justice required a new trial. We find no abuse of discretion in this determination.
The order of the court below, refusing judgment non obstante veredicto and granting a new trial in each appeal, is affirmed.