May 11, 1937.
June 25, 1937.
Appeals — Review — Order granting new trial — Discretion of lower court.
An order granting a new trial on the ground that the charge of the trial judge erroneously withdrew from the jury consideration of a material question of fact will not be reversed on appeal in the absence of an abuse of discretion.
Before SCHAFFER, MAXEY, LINN, STERN and BARNES, JJ.
Appeal, No. 183, Jan. T., 1937, from order of C. P. No. 1, Phila. Co., March T., 1935, No. 6185, in case of Claire Barban, a minor, by her aunt and next friend Fannie Schulman, v. George Maxman. Order affirmed.
Trespass for wrongful death. Before BARNETT, P. J., specially presiding.
The opinion of the Supreme Court states the facts.
Verdict for defendant. Rule filed by plaintiff for a new trial made absolute. Defendant appealed.
Error assigned was grant of new trial.
Michael A. Foley, with him Henry I. Koplin, for appellant.
S. Regen Ginsburg, with him Sidney Schulman and Howard R. Detweiler, for appellee.
Argued May 11, 1937.
This is an action by the minor plaintiff to recover damages for the death of her mother caused by her being struck near the intersection of 62nd and Chestnut Streets, in the City of Philadelphia, by defendant's automobile operated by him.
The jury found a verdict in defendant's favor. The court below granted a new trial on the ground that the trial judge had instructed the jury that there was no evidence from which they might find that the lights on defendant's car were out before the accident. The court in banc was of the opinion that the question whether the lights were or were not lit should have been submitted to the jury. In this conclusion the trial judge concurred. We are not convinced that the grant of the new trial under the circumstances was an abuse of discretion.
The order is affirmed.