Opinion
No. 36760
Decided November 15, 1961.
New trial — Evidence warranting submission of case to jury — Insufficient evidence to sustain judgment on jury's verdict — Granting new trial discretionary with trial court — Discretion not abused.
APPEAL from the Court of Appeals for Franklin County.
This is an action to recover for personal injuries alleged to have been sustained by a fall into a cellarway. Plaintiff alleges in his petition that defendant was the owner of a rooming house occupied by several tenants; that a common sidewalk extended from the front of the property to the side entrance of the building; that at about 9:30 p.m. plaintiff went to the building to visit one of the tenants; and that he walked around to the side of the building on the sidewalk and fell into an unguarded, uncovered and unlighted cellarway, sustaining injuries.
Plaintiff alleges further that defendant was negligent in that he maintained an unlighted, unguarded and uncovered cellarway on the common sidewalk and failed to warn plaintiff of such cellarway, and that as a sole, direct and proximate result of such negligence plaintiff sustained the injuries of which he complains.
The prayer of the petition is for a judgment for $7,500 and costs.
The answer is a general denial and an allegation that if plaintiff was injured upon the defendant's premises such injury was the result of and caused by plaintiff's own negligence.
Plaintiff's reply denies that the injuries received were in any way caused by his negligence and alleges that they were caused solely by the negligence of defendant.
It appears from the evidence that the house involved was a duplex on Jefferson Avenue, bearing house numbers 194 and 196, and that a walk ending in steps led from the public sidewalk to the front porch of the house from which there were two entrances numbered 194 and 196. There was also a walk along one side of the house leading to a cellarway or cellar entrance to a basement apartment.
On the night of the accident, plaintiff, who was not a tenant of the building, was requested by a tenant, Sims, to go to 196 Jefferson Avenue where Sims resided and get some money from his (Sims) wife. As plaintiff approached the house, coming up the walk, he observed the two house numbers on the front of the building but, instead of going upon the porch to the 196 entrance, he chose to go around the side of the house on the walk leading to the cellarway into which he fell. The front porch was lighted sufficiently for plaintiff to observe the house numbers, but he testified that, as he walked along the side of the building, it was so dark he could not see his hands before his eyes.
There is conflicting evidence as to whether the cellarway was lighted.
The claim was made that plaintiff was intoxicated at the time, and that his sole negligence was the proximate cause of the injury. Plaintiff admitted that he had a drink or two that evening. The evidence is conflicting as to whether he was drunk and, if so, as to the degree of intoxication.
The case was submitted to a jury which returned a verdict for plaintiff for $6,000, on which judgment was rendered. Defendant filed a motion for judgment non obstante veredicto and a motion for a new trial on the grounds, inter alia, that the damages were excessive and given under the influence of passion and prejudice, that the verdict was not sustained by sufficient evidence and was manifestly contrary to the greater weight of the evidence, and that plaintiff's own negligence was the proximate cause of his injuries.
The motion for judgment non obstante veredicto was overruled. The motion for a new trial was sustained on the ground that the amount of damages assessed by the jury was excessive, and that the judgment was not sustained by sufficient evidence.
Plaintiff appealed from the judgment setting aside the verdict and granting a new trial.
The Court of Appeals held that the trial court, by invading the province of the jury, abused its discretion in granting a new trial and erred in setting aside the verdict as being excessive, reversed the judgment and remanded the cause to the trial court with instructions to vacate its order granting a new trial and to grant a remittitur of $2,400, conditioned upon plaintiff's acceptance within ten days.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Reeves Herron, for appellee.
Mr. L.P. Henderson and Mr. Jesse Roy, for appellant.
Did the trial court abuse its discretion and invade the province of the jury by setting aside the verdict and granting a new trial?
Where a new trial is granted, no judgment is substituted for one on a verdict of a jury, but simply another trial must be had, and thus there is no substitution of the finding of the court for that of the jury.
A motion for a new trial with reference to the weight or sufficiency of the evidence is addressed to the sound discretion of the trial court and imposes upon that court a duty to review the evidence and pass upon the credibility of witnesses. In order to reverse the action of the trial court in granting a new trial on such a motion, it is necessary to show an abuse of discretion upon its part.
Since an examination of the record in the instant case fails to disclose any unreasonable, arbitrary or unconscionable attitude on the part of the trial court in sustaining the motion for a new trial, the Court of Appeals was in error in reversing the judgment.
The judgment of the Court of Appeals is, therefore, reversed on authority of Poske v. Mergl, 169 Ohio St. 70, and the judgment of the trial court is affirmed.
Judgment reversed.
ZIMMERMAN, acting C.J., TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.
ZIMMERMAN, J., sitting in the place and stead of WEYGANDT, C.J.