Opinion
December 1, 1937.
January 3, 1938.
Practice — New trial — Discretion of lower court — Appellate review.
The award of a new trial is within the discretion of the lower court; its exercise of that discretion will not be reversed on appeal except for palpable abuse.
Argued December 1, 1937.
Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeals, Nos. 216, 217 and 276, Jan. T., 1937, from orders of C. P. Monroe Co., Sept. T., 1936, No. 51, in case of Dorothy Edwards, by her father and next friend, Fred A. Edwards, and Fred A. Edwards, in his own right, v. Percy Crawford. Orders affirmed.
Trespass for personal injuries. Before FARR, P. J., specially presiding.
The opinion of the Supreme Court states the facts.
Verdicts, for minor plaintiff in sum of $10,000 and for parent plaintiff in sum of $2,500. Motions by defendant for new trial in each case granted; motion by defendant for judgment n. o. v. refused. Defendant appealed, assigning as error refusal of judgment n. o. v. Minor plaintiff appealed assigning as error grant of defendant's motion for new trial.
H. Leon Bennett, with him C. D. Shull and Edward Harshaw, for appellant, Nos. 216 and 217, appellee, No. 276.
Forrest J. Mervine, for appellees, Nos. 216 and 217, appellant, No. 276.
The minor plaintiff, with a companion, was using a swing on defendant's property, where she was a paying guest, the rope broke, precipitating her to the ground, and she was injured. This action was brought to recover the resulting damages. A verdict was rendered in her favor for $10,000 and in her father's favor for $2,500.
Defendant moved for a new trial and for judgment non obstante veredicto. The motion for judgment was refused and a new trial was granted.
So far as judgment for defendant is concerned, it is sufficient to say that our review satisfies us that on the evidence produced as to the condition of the rope the case was for the jury.
The award of a new trial is discretionary: Reiser v. Smith, 328 Pa. 292, 195 A. 56, and the exercise of that discretion will not be reversed except for palpable abuse. The court below states as its reasons for so directing that under no possible construction of the evidence could the verdict of $2,500 for the father be justified, and that the sum awarded to the daughter is grossly excessive. It is further stated that the medical testimony offered by plaintiffs is untenable in the face of all the other evidence and that another trial should be had in order that X-rays of the girl's injured spine may be taken by a disinterested expert to settle the controversy between the doctors.
The order granting a new trial and the order refusing judgment non obstante veredicto are affirmed.